Renewable Energy, Zoning and Land Use

Renewable energy, zoning and land use issues will shape the future of growth in the region. Houston Harbaugh’s Renewable Energy, Zoning and Land Use practice focuses on assisting clients maximize and protect the value of their properties, whether related to renewable energy, commercial or residential development opportunities.

Being “Grandfathered In” - What Are Pre-Existing Nonconforming Uses?

In most areas of life, if the law changes, people must change their conduct to make sure that they comply with the law. But, many people have heard a neighbor, friend or family member claim that a particular aspect of their property is “grandfathered in”, allowing a use that is not permitted by current zoning regulations. Is being “grandfathered in” a real thing and, if so, what does it mean?

Being “grandfathered in” is a real thing in zoning and land use law and is generally associated with the concept of nonconformance. “The [Pennsylvania Municipalities Planning Code (“MPC”)] identifies and defines three distinct types of nonconformance: a nonconforming lot; a nonconforming structure; and a nonconforming use. Loughran v. Valley View Developers, Inc., 145 A.3d 815, 821 (Pa. Cmmw. Ct. 2016). More specifically, the MPC provides for a “nonconforming lot”, a “nonconforming structure” and a “nonconforming use”, defining them as follows:

  • “Nonconforming lot,” a lot the area or dimension of which was lawful prior to the adoption or amendment of a zoning ordinance, but which fails to conform to the requirements of the zoning district in which it is located by reasons of such adoption or amendment.
  • “Nonconforming structure,” a structure or part of a structure manifestly not designed to comply with the applicable use or extent of use provisions in a zoning ordinance or amendment heretofore or hereafter enacted, where such structure lawfully existed prior to the enactment of such ordinance or amendment or prior to the application of such ordinance or amendment to its location by reason of annexation. Such nonconforming structures include, but are not limited to, nonconforming signs.
  • “Nonconforming use,” a use, whether of land or of structure, which does not comply with the applicable use provisions in a zoning ordinance or amendment heretofore or hereafter enacted, where such use was lawfully in existence prior to the enactment of such ordinance or amendment, or prior to the application of such ordinance or amendment to its location by reason of annexation.

53 P.S. § 10107. The foundational hallmark of a “nonconforming lot”, a “nonconforming structure” and a “nonconforming use” is that the lot, structure or use was lawful in the past. 53 P.S. § 10107. While nonconforming lots, structures and uses are separate features of property, they are often addressed under the broad scope of a nonconforming use.

“A pre-existing nonconforming use arises when a lawful existing use is subsequently barred by a change in the zoning ordinance.” Hager v. West Rockhill Township Zoning Hearing Board, 795 A.2d 1104, 1110 (Pa. Commw. Ct. 2002). The ability to maintain a nonconforming use is “only available for uses that were lawful when they came into existence and which existed when the ordinance took effect.” Sowich v. Zoning Hearing Board of Brown Township, 245 A.3d 1188, 1195 (Pa. Commw. Ct. 2021) quoting Hafner v. Zoning Hearing Board of Allen Township, 974 A.2d 1204, 1210-11 (Pa. Commw. Ct. 2009).

Just because a presently nonconforming lot, structure or land use has existed for a long time does not mean that it is “grandfathered in” under the doctrine of nonconformance. If the land use, lot or structure was never prohibited, there is no “nonconforming” character. Likewise, if the lot, structure or use was never allowed in the first place, it cannot qualify as a presently valid nonconforming use. “Preexisting illegal uses cannot become nonconforming uses.” Sowich, 245 A.3d at 1195.

As may be expected with the unique nature of nonconforming uses, the property owner has the burden to establish their existence. “The burden is on a property owner to establish the existence of a prior nonconforming use.” TKO Realty, LLC v. Zoning Hearing Board of City of Scranton, 78 A.3d 732, 735 (Pa. Commw. Ct. 2013) (citing Bevans v. Township of Hilltown, 457 A.2d 977, 981 (Pa. Commw. Ct. 1983)). If a pre-existing nonconforming use is established “[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 the use is not abandoned.” DoMiJo, LLC v. McLain, 41 A.3d 967, 972 (Pa. Commw. Ct. 2012) (citing Pietropaolo v. Zoning Hearing Board of Lower Merion Township, 979 A.2d 969 (Pa. Commw. Ct. 2009). “A lawful 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.” Pennsylvania Northwest Distributors, Inc. v. Zoning Hearing Board of Moon Township, 584 A.2d 1372, 1375 (Pa. 1991). “The right to continue a legal nonconforming use is entitled to the constitutional protection of due process.” Hunterstown Ruritan Club v. Straban Township Zoning Hearing Board, 143 A.3d 538, 545 (Pa. Commw. Ct. 2016) (citing Smalley v. Zoning Hearing Board of Middletown Township, 834 A.2d 535, 539 (Pa. 2003)).

Additionally, pre-existing nonconforming uses can be expanded. “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.” Jenkintown Towing Service v. Zoning Hearing Board, 446 A.2d 716, 718 (Pa. Commw. Ct.1982), (quoting Silver v. Zoning Bd. of Adjustment, 255 A.2d 506, 507 (Pa. 1969)). The fact that an expansion is sizeable does not make it unreasonable per se. Domeisen v. Zoning Hearing Board, O'Hara Township, 814 A.2d 851, 856 (Pa. Cmmw. Ct. 2003). However, “[l]imitations on this right occur when the expansion is inconsistent with the public interest, where the proposed expansion is in actuality not an expansion of the old use, but the addition of a new use, or in order to prevent excessive expansion.” Id.

Due to the unique nature and protections afforded to pre-existing nonconforming uses, they are frequently subject to challenge and care should be taken to build a record establishing them, including exploration of mechanisms under zoning ordinances where pre-existing nonconforming uses can be registered. If you have an issue with a nonconforming use, lot or structure, contact zoning and land use attorney Brendan A. O’Donnell at odonnellba@hh-law.com or 412-288-2226.

About Us

These are cutting edge legal issues. The law of the future. Renewable energy, zoning and land use issues will shape the future of growth in the region. Houston Harbaugh’s Renewable Energy, Zoning and Land Use practice focuses on assisting clients maximize and protect the value of their properties, whether related to renewable energy, commercial or residential development opportunities.

As renewable energy becomes more reliable, efficient, inexpensive and technologies associated with carbon capture and storage advance, Pennsylvania, West Virginia and Ohio are in position to benefit from these two parallel energy development opportunities. The region’s geographic location and existing infrastructure presents unique opportunities for property owners to participate in solar, wind, geothermal, other renewable energy developments, as well as for carbon capture, carbon sequestration and carbon storage projects. Additionally, legacy oil, gas and coal infrastructure may be repurposed and reused in connection with new energy developments.

With any development, whether renewable energy, commercial or residential, there are a host of zoning and land use issues that directly impact the most basic parts of daily life of both individuals and communities. Determining where and how land can be developed impacts property ownership, property value, quality of life and the economic development and wellbeing of communities. Zoning and land use issues are, on one hand, matters of local concern but, on the other hand, potentially subject to county or state regulations.

The Renewable Energy, Zoning and Land Use practice draws on Houston Harbaugh attorneys’ experience in energyoil and gas and real property matters to advance clients’ interests in both transactional and litigation matters. Houston Harbaugh’s Renewable Energy, Zoning and Land Use attorneys assist clients with matters including:

  • Solar energy leases;
  • Wind energy leases;
  • Pore space ownership for carbon capture / carbon sequestration / carbon storage, geothermal and waste disposal;
  • Ownership of legacy oil, gas and coal infrastructure for repurposing/renewable energy usage;
  • Compliance with existing solar, wind and renewable energy leases;
  • Surface and subsurface accommodation between competing land uses;
  • Variance, Special Exception and Conditional Uses applications/hearings;
  • Land use appeals;
  • Eminent domain
Head shot photo of Pittsburgh, Pennsylvania Oil and Gas Lawyer Brendan O'Donnell at Houston Harbaugh

Brendan A. O'Donnell

An attorney in Houston Harbaugh’s Oil and Gas Practice, Brendan O’Donnell has represented oil and gas owners across Pennsylvania in a wide array of oil and gas matters for over a decade. This experience has involved not only the Marcellus shale and the Utica shale, but more traditional oil and gas development as well.

Brendan maintains a diverse practice, representing clients in all matters involving oil and gas spanning the transactional and litigation realms. On the transactional front, Brendan routinely assists landowners with negotiating oil and gas leases, pipeline rights of way and surface use agreements and subsurface easements related to horizontal drilling as part of Marcellus and Utica shale development.  Brendan also frequently reviews royalty statements and oil and gas ownership issues as well as preparing deeds and title curative documents. Brendan also maintains an active litigation practice, representing clients in state and federal courts, as well as private arbitration matters. This litigation often involves title disputes, pooling and unitization challenges, lease termination questions and royalty/ post-production cost claims.

Assisting clients across the spectrum from contract negotiations through litigation and appeals gives Brendan valuable first-hand knowledge about how oil and gas agreements are prepared, how disputes arise and how courts resolve these issues. Brendan stays up-to-date on developments in oil and gas law and writes frequently on the these topics. Additionally, as alternative energy generation like wind and solar are increasingly being developed in oil and gas producing regions, Brendan assists clients with navigating the interplay between these complex energy developments and evaluating solar agreements.

Brendan complements his oil and gas practice by representing property owners, including oil and gas owners, in zoning and land use matters. Brendan has represented clients before municipal bodies and in appeals to court. Brendan is also active in the firm’s Energy and Environmental Law Practice.

Regardless of the type of representation, Brendan prides himself in providing clients with realistic, pragmatic advice. Hiring an attorney is an investment and Brendan focuses on how he can provide value to clients.

Outside of the office, Brendan serves on the Town of McCandless Planning Commission and lives with his family in McCandless. Brendan has visited every one of Allegheny County’s 130 municipalities.