IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Shyam Ventures, LLC, :
Appellant :
:
v. :
:
Zoning Hearing Board of the :
Borough of Castle Shannon and : No. 56 C.D. 2023
Borough of Castle Shannon : Argued: February 6, 2024
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION BY
JUDGE COVEY FILED: March 7, 2024
Shyam Ventures, LLC (Appellant), appeals from the Allegheny County
Common Pleas Court’s (trial court) December 20, 2022 order denying its appeal
from the Zoning Hearing Board of the Borough of Castle Shannon’s (ZHB) July 7,
2022 decision (ZHB Decision) that denied and dismissed Appellant’s appeal from
the Borough of Castle Shannon (Borough) zoning officer’s December 21, 2021
determination. Appellant presents three issues for this Court’s review: (1) whether
the ZHB abused its discretion or erred as a matter of law by failing to apply the
modified variance criteria applicable to requests for natural expansion of a lawful
nonconforming use; (2) whether the ZHB abused its discretion or erred as a matter
of law by concluding that Appellant’s expansion of the preexisting retail component
on its property located at 900 Sleepy Hollow Road in the Borough (Property) did not
constitute a natural expansion of the lawful nonconforming truck rental and coin-
operated laundry uses; and (3) whether the ZHB erred by ordering Appellant to cease
the sale of various retail products and remove related display counters, shelf racks,
cabinets, coolers, exterior garbage cans, and refrigerated cabinets from the Property.
The Property has been the site of a U-Haul vehicle rental business (U-
Haul) and a coin-operated laundry/laundromat (Laundromat) for at least the last 16
years. On July 8, 2013, the Borough Council adopted Ordinance No. 891 1 as the
Zoning Ordinance for the Borough (Zoning Ordinance). Consequently, the zoning
district in which the Property is located was rezoned as an R-2 Single and Multi-
Family Residential Zoning District. Appellant purchased the Property on July 13,
2018. The Property’s sale to Appellant included personal property identified in an
addendum to the sales agreement – washers and dryers, security cameras, a cold
refrigerator for drinks, a computer, storage boxes, a change/coin machine, and
overnight lock boxes for key drop-off – that had been used in connection with the
preexisting U-Haul/Laundromat operation.
Borough Zoning Officer Paul Vietmeier (Zoning Officer) visited the
Property on December 20, 2021, after the Borough’s Police Chief notified him that
Appellant had sold cigarettes to minors and that other items were being sold at the
Property. The Zoning Officer visited the Property and observed and photographed
coolers with a large assortment of soft drinks and several shelves and racks
displaying various snack food items and other products for retail sale, including
cigarettes, vape products, BIC lighters, potato chips, Slim Jims, pumpkin seeds,
assorted candy bars, Lifesavers, gummies, Ho-Hos, Twinkies, and Pop-Tarts. The
photographs also depicted coffee machines and an automatic teller machine (ATM).
The Zoning Officer informed Appellant’s employee during his December 20, 2021
inspection, and Appellant’s owners at a later meeting at the Property, that these retail
food, beverage, and other items unrelated to the U-Haul/Laundromat operation
(hereinafter, subject retail items) could not be sold on the Property, and why.
1
Borough of Chapman, Pa., Ordinance No. 891 (July 8, 2013).
2
By December 27, 2021 letter (Zoning Officer’s Determination), the
Zoning Officer notified Appellant:
[The Property] is located within the Borough’s R-2 Single
and Multi-Family Residential [Zoning] District. With the
adoption of the Borough’s updated Zoning Ordinance in
2013, the U-Haul and [Laundromat] became a
non[]conforming use within the R-2 [Z]oning [D]istrict.
The U-Haul and [Laundromat] [were] permitted to
continue to operate as a U-Haul rental and a [L]aundromat
as their existence within the [Z]oning [D]istrict predated
the update to the Zoning Ordinance as such grandfathering
the use. Under the provisions of the Zoning Ordinance,
the building may continue to operate as a non[]conforming
use so long as the use is consistent with a coin-operated
laundry, and a motor vehicle rental of U-Hauls defined
within the Zoning Ordinance. Should the building no
longer operate as a coin-operated laundry and a motor
vehicle rental of U-Hauls, the use shall revert to presently
permitted uses within the R-2 Single and Multi-Family
Residential [Zoning] District.
As a follow-up to the conversation we had on December
21, 2021[,] in the [Borough] Police Department, . . . [the
Property] would not be allowed to operate as a
convenience/express mini-mart.
As the Zoning Officer for [the] Borough, you shall remove
[sic] all cigarettes, vape products, CBD gummies, all
candy[,] bags of snacks, coolers of various soft drinks,
milks, juices, toilet paper, ice cream[,] and all display
counters, shelf racks, cabinets, coolers[,] and orange
crates. On the exterior of the building, you will have to
remove the garbage cans and refrigerated cabinet beyond
the side of the building facing Columbia Drive, from the
view of a person standing or driving by. These shall all
be removed within ten (10) days.
You would be allowed one coin-operated soda pop
machine, a coin-operated soap machine, and one coin-
operated snack machine for the convenience of the patrons
that are using the laundry machines.
3
The Borough desires a safe and pleasing appearance of the
community and shall not be dangerous, unsafe[,] or
unsanitary.
Reproduced Record (R.R.) at 258a. The Zoning Officer again visited the Property
on January 11, 2022, and took photographs reflecting that the subject retail items
remained on racks or inside coolers, and were available for purchase on the Property.
On January 13, 2022, Appellant appealed from the Zoning Officer’s
Determination to the ZHB. In its appeal, Appellant contended that the sale of the
subject retail items the Zoning Officer’s Determination banned is consistent with the
Property’s status as a preexisting nonconforming use and is a natural expansion
thereof.2 On March 29, 2022, the ZHB held a hearing at which several witnesses,
including the Zoning Officer, testified, and the parties offered exhibits and
photographs into evidence. At the ZHB’s July 7, 2022 public meeting, the ZHB
unanimously denied the appeal and affirmed the Zoning Officer’s Determination that
Appellant’s use of the Property beyond the U-Haul/Laundromat operation to sell the
subject retail items was not a permitted continuation of an existing nonconforming
use. On August 1, 2022, Appellant appealed from the ZHB Decision to the trial
court and, on August 16, 2022, the Borough intervened. On December 20, 2022,
without taking new evidence, the trial court affirmed the ZHB Decision. Appellant
appealed to this Court.3
2
The Zoning Officer visited the Property for a third time on March 29, 2022, and again
took photographs confirming that the subject retail items remained on racks or inside coolers and
were still available for purchase.
3
Where, as here, no additional evidence is taken following the
determination of a zoning hearing board, this Court’s review is
limited to determining whether the zoning hearing board committed
an error of law or a manifest abuse of discretion. An abuse of
discretion occurs when findings are not supported by substantial
evidence. Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.
4
Initially, “[i]t is well[-]settled law in Pennsylvania that a municipality
may enact zoning ordinances reasonably restricting [a] property right to protect and
promote the public health, safety[,] and welfare under its police power.” Woll v.
Monaghan Twp., 948 A.2d 933, 938 (Pa. Cmwlth. 2008). “A basic purpose of
zoning is to ensure an orderly physical development of the city, borough, township[,]
or other community by confining particular uses of property to certain defined areas.
With such a purpose nonconforming uses are inconsistent.” Hanna v. Bd. of
Adjustment of the Borough of Forest Hills, 183 A.2d 539, 543 (Pa. 1962) (citation
omitted).
“A lawful nonconforming use is a use predating the
enactment of a prohibitory zoning restriction.” DoMiJo,
LLC v. McLain, 41 A.3d 967, 972 (Pa. Cmwlth. 2012).
However, “[t]he right to maintain a pre[]existing
nonconformity is available only for uses that were
lawful when they came into existence and which existed
when the ordinance took effect.” Hager v. W[.] Rockhill
T[wp.] Zoning Hearing B[d.], 795 A.2d 1104, 1110 (Pa.
Cmwlth. 2002). When a lawful nonconforming use
exists, “the right to continue such use is afforded the
constitutional protections of due process.” DoMiJo, 41
A.3d at 972. Thus, “[a] municipality is without power
to compel a change in the nature of a use where
property was not restricted when purchased and is
being used for a lawful use.” Paulson v. Zoning Hearing
B[d.] of Wallace T[wp.], 712 A.2d 785, 788 (Pa. Cmwlth.
1998). “[A] property owner’s right to continue operating
a legal nonconforming use on its property is an interest
that runs with the land, so long as it is not abandoned.”
DoMiJo, 41 A.3d at 972.
PAJ Ventures, LP v. Zoning Hearing Bd. of Moore Twp., 225 A.3d 891, 898 (Pa.
Cmwlth. 2020) (emphasis added). “The property owner has the burden to prove the
The zoning hearing board, as fact-finder, determines the credibility
of witnesses and the weight afforded to their testimony.
Tower Access Grp., LLC v. S. Union Twp. Zoning Hearing Bd., 192 A.3d 291, 299 n.3 (Pa.
Cmwlth. 2018) (citations omitted).
5
existence of a nonconforming use, which requires ‘conclusive proof by way of
objective evidence of the precise extent, nature, time of creation[,] and continuation
of the alleged nonconforming use.’” Barnabei v. Chadds Ford Twp. Zoning Hearing
Bd., 118 A.3d 17, 23 (Pa. Cmwlth. 2015) (quoting Jones v. N. Huntingdon Twp.
Zoning Hearing Bd., 467 A.2d 1206, 1207 (Pa. Cmwlth. 1983)). The parties herein
do not dispute that the Property’s use for the operation of a U-Haul rental business
and a Laundromat is a preexisting nonconforming use.
“The right to expand a nonconforming use to provide for the natural
expansion and accommodation of increased trade ‘is a constitutional right protected
by the due process clause.’” Omatick v. Cecil Twp. Zoning Hearing Bd., 286 A.3d
413, 426 n.14 (Pa. Cmwlth. 2022) (quoting Jenkintown Towing Serv. v. Zoning
Hearing Bd. of Upper Moreland Twp., 446 A.2d 716, 718 (Pa. Cmwlth. 1982)).
Our Supreme Court articulated the doctrine of natural
expansion nearly a century ago, and Pennsylvania courts
consistently have applied the doctrine ever since. The
inquiry, however, is sometimes framed in terms of
“continuation” of a nonconforming use, which
nonetheless necessitates consideration of the doctrine of
natural expansion. See Limley [v. Zoning Hearing Bd. of
Port View], 625 A.2d [54,] 56 [(Pa. 1993)] (“In
determining what is a proper continuation of a
nonconforming use, to wit, whether a proposed use bears
adequate similarity to an existing nonconforming use, the
doctrine of natural expansion must be given effect.”).
“The rationale behind the doctrine can be traced to the due
process requirements protecting private property. If a
person owns property which constitutes a valid
non[]conforming use, it is inequitable to prevent him from
expanding the property as the dictates of business or
modernization require.” Silver [v. Zoning Bd. of
Adjustment], 255 A.2d [506,] 507 [(Pa. 1969)] (footnote
omitted). Although the doctrine earlier had been
characterized with constitutional overtones, it was in
Silver that our Supreme Court clarified that “the right of
natural expansion is a constitutional right protected by the
due process clause.” Id.
6
Dipal Corp. v. Chartiers Twp. Zoning Hearing Bd., 261 A.3d 1097, 1105-06 (Pa.
Cmwlth. 2021) (footnote omitted).
While the right to continue a legal nonconforming use is
entitled to constitutional protection, the right to natural
expansion is not unlimited, and municipalities may impose
reasonable restrictions on expansions of nonconforming
uses. Smalley [v. Zoning Hearing Bd. of Middletown
Twp.], 834 A.2d [535,] 544 [(Pa. 2003)]; Silver [], . . . 255
A.2d [at] 507 [] (expansion may not be detrimental to
public health, welfare, and safety). Thus, “conditions on
the land associated with the protected use” may be subject
to reasonable regulation. Baer v. Zoning Hearing B[d.] of
Quincy T[wp.], 782 A.2d 597, 601 (Pa. Cmwlth. 2001);
Cornell Uniforms, Inc. v. Abington T[wp.], . . . 301 A.2d
113 ([Pa. Cmwlth.] 1973) (zoning board has continuing
authority to place reasonable restrictions on a
nonconforming use).
Hunterstown Ruritan Club v. Straban Twp. Zoning Hearing Bd., 143 A.3d 538, 546
(Pa. Cmwlth. 2016).
Section 801(A) of the Zoning Ordinance provides:
Within the zoning districts established by this Chapter,
there exist uses and lots that were lawful before this
Chapter’s adoption but which are now prohibited,
regulated[,] or restricted under the terms of this Chapter.
It is the intent of this Chapter to permit these
nonconformities to continue until they are removed, but
not to encourage their survival. Such uses are considered
incompatible with the permitted uses in the zoning
districts involved.
R.R. at 487a. Section 802(B) of the Zoning Ordinance states:
A nonconforming use may be extended throughout a
building that was designed and arranged specifically for
the nonconforming use, but the nonconforming use shall
not be permitted to occupy land outside the building. If
the use of any such nonconforming structure or lot ceases
for any reason for a period of more than twelve (12)
consecutive months, any subsequent use of the structure or
7
lot shall conform to the regulations specified by this
Chapter for the zoning district involved.
R.R. at 487a.
Appellant first contends that the ZHB abused its discretion or erred as
a matter of law by failing to apply the modified variance criteria applicable to
requests for natural expansion of a lawful nonconforming use. Specifically,
Appellant argues:
It is uncontested that two lawful nonconforming uses exist
on the Property, and that they both allow a retail
component. See [ZHB] Decision, Ex[.] “B” at 10 and 12
(“[Appellant] has satisfied its initial burden of proving the
existence of a nonconforming use[] . . .” and “[t]he [ZHB]
agrees that the definitions of these two business activities
in the Borough’s Zoning Ordinance contemplates some
incidental retail sales component[.]”). [Appellant]
specifically argued in its [a]ppeal that its use and sale of
the [d]isputed [i]tems constituted a natural expansion of
this preexisting retail component. Consequently, the ZHB
was required to determine whether the changes made by
[Appellant] constituted a natural expansion, as opposed to
a continuation of, the lawful nonconforming uses on the
Property.
Appellant Br. at 18-19 (citation omitted). Appellant further asserts:
The [] Zoning Ordinance does not lay out a procedure
for a property owner to obtain approval for the
expansion of a nonconforming use. However, Section
1002(C)(1)(c) [of the Zoning Ordinance] authorizes the
[ZHB] to approve the expansion, extension, or
enlargement of nonconforming uses “as provided for in
the Zoning Ordinance.” As this Court has articulated,
where a [z]oning [o]rdinance does not set forth a
procedure to approval [sic] natural expansion of a
nonconforming use, the property owner must “meet
the ordinary requirements for the grant of a variance;”
however, some of the traditional variance requirements are
more easily satisfied when the existing use is
non[]conforming. Arter v. Phila[.] Zoning Bd. of
Adjustment, 916 A.2d 1222, (Pa. Cmwlth. 2007)
[(]quoting Jenkintown . . . , 446 A.2d [at] 720 . . . [).]
8
Appellant Br. at 19 (emphasis added). In support of its position, Appellant cites
Arter and Domeisen v. Zoning Hearing Board of O’Hara Township, 814 A.2d 851
(Pa. Cmwlth. 2003).
Unlike in the instant matter, applicants in both Arter and Domeisen
sought variances. In Arter, a cemetery - a preexisting nonconforming use in the
subject zoning district - filed a zoning and use registration application to obtain
approval to develop a funeral home and crematory, which the City of Philadelphia
(City) Department of Licenses and Inspections refused. On appeal to the City’s
Zoning Board of Adjustment (ZBA), the applicant argued that the proposed uses
were permitted accessory uses to an existing cemetery; the proposed construction
would replace deteriorated structures and was lawful; and, in the alternative, the
applicant was entitled to a use variance. Although the ZBA concluded that the
funeral home and crematory were not permitted as accessory uses as of right, it
determined that the applicant had satisfied the City’s variance criteria. The
neighborhood residents appealed to the trial court, which affirmed the ZBA’s
decision. Thereafter, the neighborhood residents appealed to this Court. This Court
reversed, agreeing with the neighborhood residents that the applicant had failed to
present sufficient evidence of unique physical conditions or prohibitive expense to
establish unnecessary hardship. Further, this Court restated the rule that where an
applicant seeks a variance, the natural expansion doctrine does not dispose of the
need to conduct a variance inquiry.4 Rather, this Court explained:
4
Nothing in Silver indicates that a party seeking a variance for an
expansion of a nonconforming residential structure need not
meet the ordinary requirements for the grant of a variance; such
an applicant must still establish that refusal to grant such a variance
would cause an unnecessary hardship peculiar to that property and
that grant of the variance would not be contrary to the health, safety
and general welfare.
9
Although the Pennsylvania Supreme Court has indicated
that, to be approved, expansion of a non[]conforming use
must “meet the ordinary requirements for the grant of a
variance,” Jenkintown . . . 446 A.2d [at] 720 . . . (quoting
Walter v. Zoning B[d.] of Adjustment (Phila[.]), . . . 263
A.2d 123, 126 ([Pa.] 1970)), some of those requirements
are more easily satisfied when the existing use is
non[]conforming.
Arter, 916 A.2d at 1229-30 (footnote omitted). As the Jenkintown Court noted:
[T]he [Pennsylvania] Supreme Court and this [C]ourt have
steadily indicated that the rights of a nonconforming use
are not such as to give it any greater standing than a
conforming use in the same district; either one will be
allowed to go beyond ordinance dimensional limitations
only if a variance is obtained.
Jenkintown, 446 A.2d at 719.
In Domeisen, the municipality granted the applicant, a nonconforming
landscaping business, a special exception and 6 related variances pertaining to a
129% floor area increase and a 2.4% building coverage increase. Neighboring
landowners challenged the variances, arguing that the applicant did not prove an
unnecessary hardship or unique circumstances of the subject property. The
Domeisen Court discussed how variance standards are to be applied to
nonconforming uses. Unlike Arter and Domeisen, the instant ZHB appeal did not
involve a variance application, and, thus, the variance standards discussed therein
are inapposite. Accordingly, the ZHB did not abuse its discretion or err as a matter
of law by not applying modified variance criteria here.
Appellant next argues that the ZHB abused its discretion or erred as a
matter of law by concluding that Appellant’s expansion of the preexisting retail
Walter v. Zoning Bd. of Adjustment (Phila.), 263 A.2d 123, 126 (Pa. 1970) (bold and underline
emphasis added).
10
component on the Property did not constitute a natural expansion of the lawful
nonconforming U-Haul/Laundromat uses.
This Court has explained:
The doctrine of natural expansion may be invoked “to
maintain economic viability or to take advantage of
increases in trade.” Nettleton [v. Zoning Bd. of
Adjustment], 828 A.2d [1033,] 1037 n.3 [(Pa. 2003)]. It
further may allow for an increase in the “magnitude” or
“intensity” of a nonconforming use. Limley, 625 A.2d at
57 (“The doctrine of natural expansion would . . . support
increased intensity in the property’s utilization.”);
Humphreys v. Stuart Realty Corp[.], . . . 73 A.2d 407, 409
([Pa.] 1950) (“[A] nonconforming use cannot be limited
by a zoning ordinance to the precise magnitude thereof
which existed at the date of the ordinance; it may be
increased in extent by natural expansion and growth of
trade . . . .”). The doctrine permits even a “change in
instrumentality” of a nonconforming use. [Chartiers v.]
William H. Martin, 542 A.2d [985,] 988 [(Pa. 1988)]; see
also Firth v. Scherzberg, . . . 77 A.2d 443, 446 ([Pa.] 1951)
(“Neither the natural growth of a business, existing at the
time of the enactment of a zoning ordinance, nor adoption
thereafter of more modern instrumentalities, suitable and
helpful in carrying on the business, works a change of use
in legal contemplation.”). Our Supreme Court has applied
the doctrine, for example, to allow a private club to expand
into a public restaurant and bar, Limley, 625 A.2d at 56-
57, to allow a take[-]out sandwich shop to expand into a
full-service pizza restaurant, Pappas [v. Zoning Bd. of
Adjustment], 589 A.2d [675,] 677-78 [(Pa. 1991)], to allow
a landfill to increase its daily intake of waste, William H.
Martin, 542 A.2d at 988-90, and to invalidate a zoning
provision prohibiting any increase in the number of
dwelling units in an apartment building, Silver, 255 A.2d
at 507-08.
Dipal, 261 A.3d at 1106.
“[O]ur Supreme Court has held that the proposed use need not be
identical to the current use. Rather, the proposed use must be sufficiently similar to
the non[]conforming use as to not constitute a new or a different use.” Arter, 916
11
A.2d at 1230 (citation omitted). “Naturally, not all uses fall within the doctrine, and
not all restrictions upon nonconforming uses are forbidden.” Dipal, 261 A.3d at
1106.
In Limley, the [Pennsylvania] Supreme Court held that a
proposed public restaurant and bar was a natural
expansion of the existing nonconforming use as a
nonprofit private social club. The [Limley] Court
determined that the chief activity of the social club was the
sale of food and beverages and that activity would remain
the same with the proposed restaurant. It also found that
the proposed establishment would serve the same type of
patron base. See also Pappas . . . (expansion of a pizza
restaurant with seating for 40 customers was similar to
existing use as a sandwich shop with limited customer
seating and selling mainly take-out food).[5]
This Court looked to the use of the property in Austin [v.
Zoning Hearing Board of Forks Township, 496 A.2d 1367
(Pa. Cmwlth. 1985),] to conclude that a proposed
expansion of a farm stand into a delicatessen constituted a
new and different use. In that case, the property owners
operated a farm stand to sell products grown on their own
property and products made from products grown on their
property, such as apple cider. They filed an application
with a local zoning board to expand their lawful
nonconforming use to include the sale of delicatessen
items of cold cuts, specialty cheeses, baked goods and
wine. Th[is] Court stated that the property owners’
proposal “to conduct an establishment quite different from
their roadside stand where only farm products grown on
the property or produced from those grown on the
property” constituted a new and different use. Austin, 496
A.2d at 1370. Accordingly, [this Court] held that the
5
See also Appeal of Indianhead, Inc., 198 A.2d 522 (Pa. 1964) (proposed day camp and
swim club were sufficiently similar to existing amusement park use); Mutimer Co. v. Wagner, 103
A.2d 417 (Pa. 1954) (proposed machinery sales office use was similar to existing real estate and
insurance sales office use); Lench v. Zoning Bd. of Adjustment of the City of Pittsburgh, 852 A.2d
442 (Pa. Cmwlth. 2004) (proposed conversion of club into restaurant constituted natural expansion
of nonconforming use); Foreman v. Union Twp. Zoning Hearing Bd., 787 A.2d 1099, 1101 (Pa.
Cmwlth. 2001) (bar/restaurant’s increased frequency of adult entertainment from “casual,
infrequent[,] and sporadic” to three nights per week was not new or different use).
12
proposed use was not protected under the doctrine of the
natural expansion of an existing nonconforming use.
Domeisen, 814 A.2d at 856. Thus, this Court must determine whether the ZHB
correctly concluded that Appellant’s display and sale of the subject retail items
constitutes a new and different use from the preexisting U-Haul/Laundromat
operation.
At the March 29, 2022 ZHB hearing, the Zoning Officer described his
December 20, 2021 visit to the Property:
Basically[,] I got a call to go down [to the Property], and
when I did walk in, I was shocked to see all the products
that were up for sale in there. And being -- it was more
than just a couple items [sic]. And I would have been okay
with the coin-operated machines, but it went way beyond
that.
R.R. at 144a. He further stated: “I told [the operators] they would have to stop selling
their products and, you know, continue on as a U-Haul[/L]aundromat.” R.R. at 146a.
The Zoning Officer presented nine photographs he took that day, which the ZHB
addressed as follows:
These nine (9) photographs, which were admitted into
evidence as Borough Exhibit No. 1, show the following:
[C]oolers with a large assortment of soft drinks and several
shelves and racks displaying various snack food items and
other products for sale. These items and products included
things such as cigarettes, vape products, B[IC] lighters,
potato chips, “Slim Jims,” pumpkin seeds, assorted candy
bars, Lifesavers, gummies, Ho-Ho[]s, Twinkies, [and]
Pop-Tarts. The [photographs] also show coffee machines
and an [ATM].
ZHB Dec. at 5. The Zoning Officer also testified regarding his January 11, 2022
and March 29, 2022 visits to the Property and he presented photographs depicting
the Property’s condition and showing that the subject retail items remained on
13
display. The Zoning Officer declared that the Zoning Ordinance does not permit a
convenience store or a retail store in a residential district.6
Dharmishtha Lodaliya (Lodaliya), Appellant’s principal and manager
of Appellant’s business, testified that she viewed the Property before Appellant’s
purchase and saw various items being offered for sale on the Property, including
boxes for packaging supplies, ice cream, sodas, and coffee. She explained that,
although Appellant has performed maintenance, it has not structurally changed the
Property since its purchase. Lodaliya acknowledged that Appellant began selling
additional quantities of retail food, beverages, and other items on the Property
because Appellant was not making enough money from its U-Haul/Laundromat
businesses. She described that the U-Haul/Laundromat revenues alone were
insufficient to maintain Appellant’s business.
Lodaliya stated that Appellant added two new large stand-up coolers,
shelving, racks, and a peg board to display the subject retail items. She recalled that
Appellant also added a microwave, another coffee machine, and the ATM. She
further related that Appellant expanded the subject retail items for sale on the
Property, including different kinds of soda pop, milk, BIC lighters, vape products,
candy bars, crackers, prepackaged baked goods, and cigarettes. Lodaliya explained:
“So most of the customers come to do the laundry and the rental U-Haul [sic], and
some of them come to buy, like, snacks and everything. And a few customers come
-- while they are waiting for the laundry, they buy the snacks and coffee.” R.R. at
199a. She further informed the ZHB:
6
The Zoning Ordinance defines “Convenience Store Without Alcohol” as “a retail store
with a gross floor area of 5,000 square feet or less, offering a limited selection of grocery,
household, non-alcoholic[,] and personal items for quick purchase, but not including the
dispensing of fuel/energy recharge.” R.R. at 370a. The Zoning Ordinance defines “Retail Store”
as “any establishment not otherwise specifically defined that sells or rents commodities and/or
services on the premises directly to the general public, available for immediate purchase and
removal, but not including the manufacturing or processing of any products.” R.R. at 387a.
14
I bought this property when there was already a retail use
and I bought it to continue the use of the [P]roperty as it
was. And financially I have to find a way to make more
money, so I come [sic] up with some of the retails on the
[P]roperty.
And I have done everything I can to keep the business
afloat, but I need to sell some additional items to keep [sic]
open. And there’s no change out of the organization of the
physical [P]roperty. And I have not plan[ned] to change
the overall use.
So[,] I think that what I am doing on the [P]roperty is
allowed under this uses [sic], and same when I bought
them and where. So[,] I think any small changes I made
are nothing more than is a natural expansion of this
permitted use.
R.R. at 203a-204a.
Anitra Miller (Miller) also testified on Appellant’s behalf. Miller stated
that she has lived down the street from and has visited the Property over the 11 years
she has lived there. Miller stated: “I do laundry. I’ve done a U-Haul, and I actually
moved on the street. I purchased, like, the drinks and the chips on the [Property].”
R.R. at 237a. She expounded: “There was -- the ice creams has [sic] been there the
whole time I’ll [sic] live there. There was a cooler with soft drinks in it. There were
chips and candy bars on the counter. [The prior owner] actually charged, I believe
it was, 25 cents for coffee for customers.” R.R. at 238a.
Miller opined:
[Appellant is] not doing anything wrong by adding more
retail to [its] business. [Appellant is] actually supplying
the residents. There’s [sic] elderly there that can’t get to
the grocery store now that they closed Giant Eagle
down the road.
So[,] [Appellant is] in walking distance to . . . get stuff
because [it has] added milk, bread, stuff that the
residents can get to. Because there is a lack of a
15
grocery store because the grocery store is a fair distance
away.
R.R. at 238a-239a (emphasis added).
Section 102 of the Zoning Ordinance defines “Coin Operated Laundry
and Cleaning” as:
[A] self-serve laundry facility where washing and drying
machines are provided for use of customers. The washing
machines must use a water (rather than solvent)[-]based
cleaning system. The facility may or may not provide staff
to assist customers or provide related retail products for
sale. The facility may or may not provide laundering
services for drop-off or delivery. This use does not include
“dry cleaning processing.”
R.R. at 369a (emphasis added). Thus, the chief activity of a coin-operated laundry
business is to provide access to coin-operated laundry machines and related
products for customers’ use.
The Zoning Ordinance defines “Motor Vehicle Rental, Sales and
Service” as “a business establishment for the rental, sales[,] and service of
automobiles, motorcycles[,] and trucks and any heavy equipment or any other
vehicle or equipment which is not classified as a ‘motor vehicle’ under the
Pennsylvania [] Vehicle Code[, 75 Pa.C.S. §§ 101-9805].” R.R. at 381a. Thus, the
chief activity of a U-Haul rental business is to rent vehicles and provide supplies
related to the vehicles’ use.
The ZHB acknowledged in the ZHB Decision that the Zoning
Ordinance contemplates some retail sales incident to the operation of such business
activities, observing:
[I]t would be reasonable to expect that someone would be
able to purchase a small packet of detergent or a can of
pop or a candy bar from a vending machine while washing
or drying clothes in a laundromat.
16
[] Similarly, it would be reasonable to expect that someone
would be able to purchase moving supplies like tape or
boxes or even items like a can of pop, a cup of coffee[,] or
an ice cream bar while that person was in the process of
renting a van, truck[,] or trailer to move personal property.
[] But the recognition of this retail component of these two
business activities cannot reasonably mean that someone
has a license to exploit this incidental retail aspect to such
an extent that the incidental aspect becomes a new co-
equal use, if not the predominant, use of a property. The
evidence demonstrates that [Appellant] has done such in
this case by adding so many retail food, beverages[,] and
other items and equipment related to the sale of these items
that the Property’s use has changed and has become the
site of a convenience store.
ZHB Dec. at 12-13. This Court agrees.
The sheer volume of the subject retail items Appellant offers for sale,
as evidenced in the Zoning Officer’s photographs and described in Lodaliya and
Miller’s testimony, reflects a change in the Property’s use far beyond a
nonconforming U-Haul/Laundromat use and retail items sold incident to those
operations. Therefore, the ZHB did not abuse its discretion or err as a matter of law
by concluding that Appellant’s expansion of the preexisting retail use at the Property
was not a natural expansion of the lawful nonconforming U-Haul/Laundromat
operation.
Finally, Appellant raises several objections in support of its claim that
the ZHB erred by ordering Appellant to cease the sale of the subject retail items and
remove related display counters, shelf racks, cabinets, coolers, exterior garbage cans,
and refrigerated cabinets.
Citing Silver, Appellant acknowledges a municipality’s authority to
impose reasonable restrictions, but contends that the ZHB Decision contains no
explanation of how the Zoning Officer’s Determination requiring removal of the
subject retail items was reasonable or how the sale of such items was “detrimental
17
to the public health, welfare[,] and safety.” Silver, 255 A.2d at 507. The Silver
Court recognized that “a lawful non[]conforming use . . . may validly be expanded
by a reasonable accessory use which is not detrimental to the public health,
welfare[,] and safety.” Id. (emphasis added) (quoting Gross v. Zoning Bd. of
Adjustment, 227 A.2d 824, 826 (Pa. 1967)). However, this holding does not
contemplate, as in this instance, a use entirely different from the chief activities of
the nonconforming business. Thus, Appellant’s argument fails.
Appellant further argues that because some incidental retail is permitted
under the nonconforming businesses’ Zoning Ordinance definitions and some retail
sales had occurred at the Property before 2013,7 the ZHB erroneously upheld the
Zoning Officer’s Determination that Appellant stop selling many of the subject retail
items and remove the outside garbage cans and refrigerated cabinets from view. See
R.R. at 4a. Appellant questions: “How can the admittedly permitted retail
component operate on the Property if [Appellant] cannot have any ‘display counters,
shelf racks, cabinets, coolers[,] and orange crates . . . [as well as exterior] garbage
cans and refrigerated cabinet[s][?’”] Appellant Br. at 31 (quoting R.R. at 4a).
Importantly, the Zoning Officer’s Determination acknowledged the permissible
reasonable retail component when it notified Appellant: “You would be allowed one
coin-operated soda pop machine, a coin-operated soap machine, and one coin-
operated snack machine for the convenience of the patrons that are using the laundry
machines.” R.R. at 4a. Accordingly, Appellant’s argument is without merit.
Appellant also claims that the Borough’s actions are an impermissible
attempt to control the type of merchandise Appellant sells at the Property, asserting
7
Other than Miller’s imprecise testimony describing the availability of ice cream, soft
drinks in a cooler, and chips and candy bars on the counter, there is little record evidence regarding
the type or extent of retail sales occurring at the Property before 2013. Appellant has not met its
burden to demonstrate that the retail sales were a prior existing nonconforming use. See Barnabei.
18
that “zoning ordinances, and those who enforce them, may only regulate where a use
occurs and never how it occurs.” Appellant Br. at 34.
The law is well established:
[A]lthough Section 601 of the [Pennsylvania
Municipalities Planning Code8 (]MPC[)], 53 P.S. § 10601,
expressly authorizes municipalities to enact zoning
ordinances designating what land uses are permitted in
what districts for purposes of planned community
development (i.e., the where), the MPC does not
authorize those municipalities to dictate specific
business operations (i.e., the how) under the guise of
zoning regulation. See [In re] Thompson, 896 A.2d [659,]
670 [(Pa. Cmwlth. 2006)] (“Special exception . . .
proceedings involve only the proposed use of the land, and
do not involve the particular details of the design of the
proposed development.”); see also Van Sciver v. Zoning
Bd. of Adjustment of Phila., . . . 152 A.2d 717, 724 ([Pa.]
1959) (Variance conditions, inter alia, limiting a self-
serve laundromat’s unmanned nature and operating hours
in the interest of crime prevention nevertheless constituted
unreasonable “intermeddling with the applicant’s
ownership of his property.”); Appeal of Sawdey, . . . 85
A.2d 28, 32 ([Pa.] 1951) (An ordinance (or condition) that
“permitted a butcher shop . . . in an area but prohibited its
sale of pork, or a drugstore but prohibited its sale of candy,
or a grocery store but prohibited its sale of bread, would
surely be regarded a[s] unreasonable legislation on details
of a business . . . .”); . . . Land Acquisition, Servs., Inc. v.
Clarion C[n]ty. Bd. of Comm’rs, . . . 605 A.2d 465 ([Pa.
Cmwlth.] 1992) (Where an ordinance’s primary objective
is to regulate and control the operational aspects of a
business, the ordinance is not a zoning ordinance.); Schatz
v. New Britain Twp. Zoning Hearing Bd. of
Adjustment, . . . 596 A.2d 294, 298 ([Pa. Cmwlth.] 1991)
(“Zoning only regulates the use of land and not the
particulars of development and construction.”); Kulak v.
Zoning Hearing Bd. of Bristol Twp., . . . 563 A.2d 978, 980
([Pa. Cmwlth.] 1989) (“[A] [zoning hearing] board may
8
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101 - 11202.
19
not attach a condition to a special exception which
essentially serves a non-zoning purpose[.]”).
MarkWest Liberty Midstream & Res., LLC v. Cecil Twp. Zoning Hearing Bd., 184
A.3d 1048, 1060-61 (Pa. Cmwlth. 2018).
Contrary to Appellant’s characterization, the Zoning Officer’s
Determination does not attempt to dictate Appellant’s U-Haul/Laundromat
businesses. Rather, it concludes that, based on the magnitude and variety of retail
sales at the Property, Appellant is operating a different, prohibited business - a
business that far exceeds the reasonable parameters of the permitted nonconforming
uses. Appellant contends that the Zoning Officer’s Determination is an “explicit
attempt to regulate the sale of cigarettes and vapes [which] is preempted by state
law.” Appellant Br. at 35. However, the Zoning Officer’s Determination does not
dictate Appellant’s U-Haul/Laundromat businesses by prohibiting the sale of
cigarettes or vape products, but rather concludes that Appellant is operating a
prohibited business at the Property. Accordingly, Appellant’s arguments lack merit.
Finally, Appellant asserts that the Zoning Officer’s Determination
restricts its retail operations beyond the Zoning Ordinance’s express provisions.
Specifically, Appellant claims:
The Zoning Ordinance allows the sale of “related retail
products.” Zoning Ordinance § 102. The [Zoning
Officer’s Determination] orders removal of a variety of
items, in addition to all fixtures related to retail sales, from
the Property without any consideration as to whether or
not they are “related[]” to the [l]aundry [u]se.
Appellant Br. at 32.
This Court has explained:
It is a principle entrenched in the law that “zoning
ordinances are to be liberally construed to allow the
broadest possible use of land,” Ligo v. Slippery Rock
Township, 936 A.2d 1236, 1238 (Pa. Cmwlth. 2007), or,
20
in other words, “to give the landowner the benefit of the
least restrictive use.” Riverfront Dev[.] Gr[p.], LLC v. City
of Harrisburg Zoning Hearing B[d.], 109 A.3d 358, 366
(Pa. Cmwlth. 2015). “[W]e must remember that ‘[t]he
permissive widest use of the land is the rule and not the
exception, unless specifically restrained in a valid and
reasonable exercise of the police power.’” Neshannock
T[wp.] v. Musguire, . . . 484 A.2d 839, 840 ([Pa. Cmwlth.]
1984) (quoting Fidler v. Zoning B[d.] of Adjustment, . . .
182 A.2d 692, 695 . . . ([Pa.] 1962)). Indeed, “[t]his Court
has held that it is an abuse of discretion for a zoning
hearing board to narrow the terms of an ordinance and
further restrict the use of a property.” Reihner v. City of
Scranton Zoning Hearing B[d.], 176 A.3d 396, 400 (Pa.
Cmwlth. 2017).
In reviewing the plain language of the text of an ordinance,
Kohl v. New Sewickley Township Zoning Hearing Board,
108 A.3d 961, 968 (Pa. Cmwlth. 2015), we are “guided to
construe words and phrases in a sensible manner, utilize
the rules of grammar and apply their common and
approved usage, and give undefined terms their plain,
ordinary meaning.” Adams Outdoor Advert[.], LP v.
Zoning Hearing B[d.] of Smithfield T[wp.], 909 A.2d 469,
483 (Pa. Cmwlth. 2006). In interpreting a zoning
ordinance, we apply the rules of statutory construction.
The primary mission of statutory interpretation is to
determine legislative intent. Section 1921 of the Statutory
Construction Act of 1972, 1 Pa.C.S. §1921. The plain
language of a statute generally provides the best indication
of legislative intent, and therefore, statutory construction
begins with analyzing the text itself. To ascertain and
provide a natural construction of language and phrases, we
may consult dictionaries and can draw upon common
sense and basic human experience.
We recognize that “[a board’s] interpretation of its own
zoning ordinance is entitled to great deference and
weight.” Hafner v. Zoning Hearing B[d.] of Allen T[wp.],
974 A.2d 1204, 1210 (Pa. Cmwlth. 2009). As a general
matter, the courts afford the interpretation proffered by a
zoning hearing board and/or a zoning officer some degree
of deference. However, if that interpretation is
inconsistent with the plain language of the ordinance or
the meaning of the ordinance is unambiguous, the
21
“interpretation carries little or no weight.” Malt [Bevs.
Distribs. Ass’n v. Pa. Liquor Control Bd.], 918 A.2d [171,]
176 [(Pa. Cmwlth. 2007)]. This is because “a zoning
board is not a legislative body, and it lacks authority to
modify or amend the terms of a zoning ordinance.” Greth
Dev[.] Gr[p.], Inc. v. Zoning Hearing B[d.] of Lower
Heidelberg T[wp.], 918 A.2d 181, 187 (Pa. Cmwlth.
2006).
Sabatini v. Zoning Hearing Bd. of Fayette Cnty., 230 A.3d 514, 520-21 (Pa. Cmwlth.
2020) (citations and footnote omitted).
Merriam-Webster defines “related” as “connected by reason of an
established or discoverable relation[.]” “Related.” Merriam-Webster.com
Dictionary, Merriam-Webster9 (emphasis added). It defines “relation” as “an aspect
or quality (such as resemblance) that connects two or more things or parts as
being or belonging or working together or as being of the same kind[.]”
“Relation.” Id.10 (emphasis added).
Here, the Zoning Ordinance permits a laundromat to “provide related
retail products for sale[,]” R.R. at 369a, and the Zoning Officer’s Determination
permitted Appellant only “one coin-operated soda pop machine, a coin-operated
soap machine, and one coin-operated snack machine for the convenience of the
patrons that are using the laundry machines.” R.R. at 258a. Because the ZHB did
not address the extent to which the Zoning Officer’s determination is consistent with
the text, “related retail products,” in Section 102 of the Zoning Ordinance’s
definition of “Coin Operated Laundry and Cleaning[,]” this Court does not opine on
whether that determination is more or less restrictive than the Zoning Ordinance
requires, and must remand for the ZHB to consider that question in the first instance.
9
https://www.merriam-webster.com/dictionary/related (last visited Mar. 5, 2024).
10
https://www.merriam-webster.com/dictionary/relation (last visited Mar. 5, 2024).
22
For all of the above reasons, the trial court’s order is vacated and the
matter is remanded to the trial court with direction that it remand to the ZHB to
determine the meaning of the term “related retail products” in Section 102 of the
Zoning Ordinance’s definition of “Coin Operated Laundry and Cleaning.”
_________________________________
ANNE E. COVEY, Judge
23
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Shyam Ventures, LLC, :
Appellant :
:
v. :
:
Zoning Hearing Board of the :
Borough of Castle Shannon and : No. 56 C.D. 2023
Borough of Castle Shannon :
ORDER
AND NOW, this 7th day of March, 2024, the Allegheny County
Common Pleas Court’s (trial court) December 20, 2022 order is VACATED and this
matter is remanded to the trial court with direction that it REMAND to the Zoning
Hearing Board of the Borough of Castle Shannon for further proceedings consistent
with this Opinion.
Jurisdiction is relinquished.
_________________________________
ANNE E. COVEY, Judge
Shyam Ventures, LLC v. ZHB of the Borough of Castle Shannon & Borough of Castle Shannon
Combined Opinion