PA Northwestern Distributors Inc. v. Zoning Hearing Board
584 A.2d 1372 (1991)

  • Northwestern filed all the proper paperwork to open a business in Moon Township Pennsylvania, then proceeded to open an adult bookstore.
  • Three weeks later, the Moon Township Zoning Board amended their zoning laws to impose severe restrictions on adult bookstores.
    • The new ordinance said that adult bookstores could only be located in certain zoning districts, and Northwestern was not in such a district.
      • That made Northwestern a preexisting, nonconforming use of the property.
    • The new ordinance gave pre-existing adult bookstores like Northwestern only 90 days to come into compliance with the law (basically move to a new location).
      • Using a time frame to force compliance with a new regulation is known as an amortization of nonconforming uses.
  • Northwestern appealed the decision to the Zoning Board, but the appeal was denied. Northwestern sued.
    • Northwestern argued that the amortization aspect of the new ordinance was a violation of due process and a taking of property without just compensation.
    • The Zoning Board argued that, under Sullivan v. Zoning Board of Adjustment (83 Pa. Commw. 228, 478 A.2d 912 (1984)), amortization of nonconforming uses is a constitutional use of police power as long as the provisions are reasonable.
    • The Zoning Board argued that giving existing businesses a limited time frame to come into compliance was not that much different than passing an ordinance to limit future use.
  • The Pennsylvania Supreme Court reversed the decision of the Zoning Board.
    • The Pennsylvania Supreme Court found that changing the zoning law and then telling lawful preexisting nonconforming businesses to move is “per se confiscatory and violative of the Pennsylvania Constitution.”
    • The Court felt that if the Zoning Board were allowed to get away with this, then there is nothing stopping them from getting rid of any business (or resident) they didn’t like by simply amortizing them out of existence.
  • In a concurring opinion, it was argued that that amortization provisions weren’t per se unconstitutional, but they had to be reasonable, and Moon Township’s wasn’t reasonable because it failed to provide adequate time for Northwestern to come into compliance.
  • Basically, the general rule is that preexisting businesses/residences are grandfathered in when zoning laws change.
    • There are several ways that a preexisting business can lose their ability to remain, including; destruction of the business (like a fire) and abandonment of the property.
      • However, since the right to maintain a nonconforming use runs with the land, it survives a change in ownership.
    • Some States do allow nonconforming businesses to be amortized away, but the timeframe must be reasonable.
  • One could argue that, using the Contract Law doctrine of reliance, that Northwestern had relied on the zoning laws allowing them to continue business, and therefore had a claim against the Zoning Board for changing the ordinance.
  • Compare this case to Village of Euclid v. Ambler Realty Co. (272 U.S. 365 (1926)). In that case, Ambler hadn’t yet built on the land and got no compensation when the zoning law changed, but in this case, the Court goes out of its way to compensate Northwestern, perhaps because they had an existing business.
    • The courts may want to encourage people to invest in property, and not let them worry that if they do invest they could lose their investment if the zoning laws change. But if they are just sitting on an empty lot they get no sympathy.