Background
PA 180 Kost Road LLC owns approximately 78 acres in Silver Spring Township, Cumberland County. IBM originally developed the site in 1979—when the zoning permitted warehousing and distribution—constructing three connected buildings totaling roughly 330,000 square feet. IBM later subdivided the property into three separate tax parcels without township approval. In 2015, the Township rezoned the area to a light industrial (I-1) district, which does not permit warehouse uses. The existing warehousing and distribution operation thus became a nonconforming use.
In 2018, the Township’s Zoning Hearing Board (Board) approved a special exception allowing Applicant to demolish two of the three original buildings (totaling 325,450 square feet) and replace them with a single 478,080-square-foot warehouse—an increase of approximately 46.9 percent over the square footage that was nonconforming as of 2015. Section 603A of the Township Zoning Ordinance (Ordinance) limits alterations and expansions of nonconforming uses to “an additional 50 percent of the area of those buildings or structures or land devoted to the nonconforming use.” Section 606 provides that once a nonconforming building or use has been expanded to the limits authorized by prior approval, no further expansion is permitted.
In 2024, Applicant sought a second special exception to demolish the remaining administration building on the third parcel (Lot A) and add a 210,000-square-foot expansion to the existing warehouse, resulting in a 697,080-square-foot structure—a 114.19 percent increase from the 2015 nonconforming baseline. Applicant argued that the word “or” in Section 603A created separate 50% allowances for buildings, structures, and land respectively, and that measuring against the total land area devoted to warehousing (approximately 1.97 million square feet), the 210,000-square-foot addition was well under 50%. The Board denied the special exception. Common Pleas affirmed.
The Court’s Holding
Judge Wallace, writing for the panel, affirmed on all issues. On the core interpretive question, the court held that Section 603A(2) establishes one 50% cap, not three independent caps. The disjunctive “or” in “buildings or structures or land” identifies the unit of measurement depending on the nature of the nonconformity—it does not create separate, cumulative allowances that can each be expanded by 50%. Because Applicant’s nonconforming use was a warehouse (a building use), the relevant measure was building area. The 2018 expansion had already consumed approximately 47 percent of the building-area cap, leaving almost nothing in reserve.
The court rejected Applicant’s reliance on Finegan v. Board of Supervisors of Earl Township, 826 A.2d 76 (Pa. Cmwlth. 2003), in which this Court permitted a combined calculation of land and structure area. The distinction is that the Finegan ordinance expressly provided separate expansion allowances for land area and for structural floor area—an explicitly additive scheme. Section 603A(2) contains no such separate allowances; its single 50% cap applies to whichever category—building, structure, or land—is relevant to the nonconformity at issue.
The court also rejected Applicant’s characterization of its project as an “alteration” of the nonconforming use rather than an “expansion” of the building. The Ordinance defines “alteration” to include “any renovation to a building which would change its . . . size.” Applicant sought to add 210,000 square feet to the existing warehouse—plainly increasing its size. Whether labeled alteration or expansion, the practical effect was the same. Finally, Section 606 independently barred the application: once the 2018 approval had brought the warehouse to within a fraction of the 50% cap, no further expansion was authorized.
Key Takeaways
- A zoning ordinance that limits alteration or expansion of nonconforming uses to “50 percent of the area of those buildings or structures or land” imposes a single cumulative cap, not three separate 50% allowances; the disjunctive “or” identifies the applicable measure based on the nature of the nonconformity, not independent expansion buckets.
- Finegan v. Board of Supervisors of Earl Township is distinguishable: that case turned on an ordinance that explicitly created separate expansion allowances for structural floor area and land area; absent such explicit separate allowances, the single cap applies to the relevant category and is not additive.
- A previously approved special exception for expansion of a nonconforming building counts against the lifetime expansion limit; once the 50% cap has been substantially reached, Section 606-type provisions bar future expansion even if new approvals are sought years later.
- Characterizing a proposed warehouse addition as an “alteration of use” rather than an expansion of the building will not overcome the Ordinance’s size-increase restriction where the practical effect—adding 210,000 square feet to the building’s footprint—is plainly an expansion.
Why It Matters
Nonconforming use rights are among the most practically significant and contested aspects of Pennsylvania zoning law, particularly for owners of large commercial or industrial properties that predate zoning changes. Owners often seek to expand facilities incrementally over many years through successive special exception approvals, and this decision establishes that those approvals have a lasting cost: each one draws down the remaining expansion capacity under the ordinance’s cap. There is no reset between approvals.
For commercial real estate practitioners advising clients on property acquisitions, the lesson is to evaluate not just the current expansion allowance but also the full history of prior Board-approved expansions. A prior owner’s 2018 special exception may have consumed most or all of the capacity that would otherwise be available for a future buyer’s redevelopment plans. Similarly, zoning counsel should scrutinize the language of the applicable ordinance before arguing that “or” creates additive allowances: the court here found the plain language to impose a single cap, and Finegan’s more permissive approach depended on explicit structural choices in a different ordinance that are not present in most standard nonconforming use provisions.