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Nonconformitie = No Commercial Rights?

Discussion in 'Commercial Landlord & Tenant Issues' started by willamAok, May 15, 2016.

  1. willamAok

    willamAok Law Topic Starter New Member

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    Jurisdiction:
    Pennsylvania
    leasor writes lease. leasee signs commercial lease for retail store property located sidewalk front street view under apartments. Lease does not contain any clause which states do not put items on sidewalk. leasee required commercial application for peco. Leasee is fined by township for putting items on sidwalk. upper darby township says property is located in an r3 zone and violation of article3 section 301 table 3-1. A3sec301t3-1 refers to restriction of R3 district to use of homes only. An apartment complex with commercial units is not a house.
    Sale of property is stalled by litigation over itema on sidewalk between leasee and township. Real estate agent insisted to pay leasee's fine to expidite sale of building. Leasee agreed but maintained innocence. No appeal was able to later be filed. Leasor tranfers lease to new leasor. New leasor later mentions property is a nonconformitie and is not sure if it is legal to put items outside to display. commercial zoned busniesses are permitted to put items on sidewalk. Its previous zoning was a C1. This is evidence that township will not reveal. Nonconformities are protected by law. Even though this was rezoned as a residential district, isn't the leasee permitted to have the same rights as it did before when it was commercial? Isnt this the definition of a nonconformitie? Leasee still exercises right to put items outside. Leasor is fined by the township. Leasor is given deal by township, evict the leasee or pay the fine. Leasor files for posseion. Judgment to leasor due to leasee breaking lease. Lease states leasee must obey all township ordinances. Leasee states although township said an ordinance was broken, that does not mean they have. Leasee believes the nonconformite (grandfathered commercially zoned property in a newly residentially zoned district) has the right to put items on the sidewalk. Leasee belives maybe the lease could be fraudulant stating it is a commercial property , but does not have commercial rights. Leasor will not appeal the ordinance. Leasee is appealing the possesion notice. Is leasee entilited to compensation and damages if leasor offers a property less than what was expected? Are nonconformities such as this permitted to put items on sidewalk. Thank you for reading
     
  2. adjusterjack

    adjusterjack Super Moderator

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    It was up to lessee to check this all out before leasing the property. People in business are expected by the law to know business and take appropriate precautions. I don't see the lessee being entitle to any compensation for his lack of due diligence. Lessee is welcome to hire a lawyer and review his options.
     
    willamAok likes this.
  3. willamAok

    willamAok Law Topic Starter New Member

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    Excellent! Thank you so much!
     
  4. willamAok

    willamAok Law Topic Starter New Member

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    Can you also confirm that a nonconformitie may not put items outside for display?
     
  5. army judge

    army judge Super Moderator

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    The prohibition of placing items for sale, or simple display, is most likely a creature of local municipal ordinance.

    Therefore, it would be out of the landlord's control.

    Check with your city code enforcement, ask your local government elected official for specific guidance, or search your city government site.

    In the future, why bother being that specific in your lease?

    Why not use a standard, legally vetted lease available from and
    Rd association websites, or legal forms stores?
     
  6. willamAok

    willamAok Law Topic Starter New Member

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    leasee believes that this proves they may put things outside. is there language here that verifies this?
    Section 1010 - Nonconformities
    1010-A. Intent
    This Section is intended to guide the development of Upper Darby Township in accordance with the Comprehensive Plan and other specific plans of action. The rights of the owners of nonconforming structures, lots, and uses are recognized and will be protected by law.

    1010-B. Nonconforming Structures
    • All structures, lots, uses of structures and uses of land that do not conform to the regulations of the district in which they are located after the effective date of this chapter or amendment thereto shall be regarded as nonconforming and may be continued so long as they remain otherwise lawful, including subsequent sales of property.
    • Legal nonconforming structures may continue to be occupied but may not be expanded unless all additions conform with the requirements of this Ordinance.
    • A nonconforming structure of which more than fifty percent (50%) of the floor and roof area is destroyed or a nonconforming structure which has been legally condemned may be rebuilt only if permitted as a Special Exception and subject to the following conditions:
      • The replacement structure shall not exceed the height, area and volume of the previous structure.
      • It is demonstrated that the replacement structure will not be materially detrimental to the surrounding area or the interest of the Township.
      • It is demonstrated that the replacement structure will not require more parking than the previous structure.
    • The remains of a nonconforming structure of which more than fifty percent (50%) of the floor and roof area is destroyed must be removed from the site within six (6) months.
    1010-C. Nonconforming Uses
    • A legal nonconforming use of a structure or land may continue, and the sale or transfer of ownership of the use, structure, or land shall not affect this right.
    • A nonconforming use of a structure or land may be changed to a conforming use or to a use of a more restricted classification in accordance with Sections 1010.C.4 and 1010.C.5. Whenever a nonconforming use of a structure or land has been changed to a use of a more restricted classification or to a conforming use, such use shall not thereafter be changed to a use of a less restricted classification. This does not, however, prevent the change in ownership of a nonconforming use.
    • Should a nonconforming use cease operation for a period of twelve (12) consecutive months, said use shall be considered abandoned and all rights arising from the nonconforming status shall be considered voided, unless the property owner shall provide to the Zoning Officer (or, if on appeal, then to the Zoning Hearing Board), a preponderance of evidence demonstrating that the owner has not abandoned the non-conforming use status.
    • A change in use to a more restrictive commercial classification may occur between the following groups: C-4, C-3, C-2, C-1, with C-1 being the most restrictive classification.
    • A change in use to a more restrictive residential classification may occur between the following groups: R-4, R-3, R-2, R-1, R-C-1, R-C, with R-C being the most restrictive classification.

    previous classification was a C1. as a C1 by right, items may be outside for display.
    502-D. Accessory Use Standards
    • A list of accessory uses is provided in Article III,Section 301, Table 3-1.
    • Video Arcade and Game Room - A maximum of ten (10) coin operated electronic or mechanical games permitted as an accessory use in one establishment in addition to a coin operated music machine (juke box). Such devices shall be located at least ten (10) feet from the exit.
    • Outdoor Display
      • Commercial uses may have temporary display areas for the sale of goods or merchandise within front yards for the purpose of a sidewalk sale subject to regulation by all other applicable Township ordinances.
      • Outdoor display is intended to comprise representative samples or examples of the goods and merchandise available for purchase, rather than the entire stock of any item.
      • Displayed items shall not be permanently affixed in front yards.
      • Outdoor display areas shall not encroach upon any required parking areas.
      • Outdoor display areas shall not exceed fifty percent (50%) of the required front yard area.
    After rezoning to r3 district ,property becomes a nonconformitie. With this information, does it prove that nonconformitie has the protected right to put items out for dislplay?
     
  7. army judge

    army judge Super Moderator

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    You'll have to litigate your differences before a court, if a compromise can't be reached.

    That's all that can be done when parties with disputes can't reach negotiated settlements.

    There is no magic chant, magic spell, or magic words that can be uttered to cause the other party to comply.
     

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