The Pennsylvania Supreme Court's website issued an Order denying petitions to hear the Appeal regarding the operation of a funeral home and crematory on Greenwood's grounds. There will be no funeral home or crematory.

Pray for those poor souls buried there.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Catherine Bradley Arter, Edward R.
:
Becker, Flora L. Becker, Gloria Boyd, :
Harold Byer, Susan Byer, Joseph L.
:
Capella, Patricia Doohan, Joyce
:
Halley, Jim Howarth, Jacqueline
:
Khoshnevissan, Joseph Menkevich
:
and Leonard Williams,
:
Appellants
:
:
v.
: No. 1335 C.D. 2005
:
Philadelphia Zoning Board of
: Argued: November 15, 2006
Adjustment, Anna Batten, Ronald
:
Hancock, Carol Hancock, Nicholas
:
Bernardo, Richard T. Mariano, City
:
of Philadelphia, Delcasale Casey
:
Martin & Manchello, Francis J.
:
Hanssens, Jr., Greenwood Cemetery, :
Willow Ridge Ltd. and Northwood
:
Civic Association
:
BEFORE: HONORABLE DORIS A. SMITH-RIBNER, Judge
HONORABLE DAN PELLEGRINI, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE MARY HANNAH LEAVITT, Judge
OPINION BY
JUDGE COHN JUBELIRER
FILED: February 8, 2007
Catherine Bradley Arter, Edward R. Becker, Flora L. Becker, Harold Byer,
Susan Byer, Joseph L. Capella, Patricia Doohan, Joyce Halley, Jim Howarth,
Jacqueline Khoshnevissan, Joseph Menkevich, and Leonard Williams (collectively
Page 2
2
Appellants), residents of the Northwood section of Philadelphia, have appealed a
decision of the Court of Common Pleas of Philadelphia County (trial court),
affirming the decision of the Zoning Board of Adjustment of the City of
Philadelphia (ZBA), which granted variances sought by Greenwood Cemetery
Company (Greenwood).
1
Pursuant to those variances, Greenwood, the current
owner, and Willow Ridge Ltd. and Ronald and Carol Hancock, the prospective
purchasers (collectively Applicants), wish to develop, in an historic cemetery
located in an R-4 residential zoning district, a funeral home and a human
crematory. Appellants argue, in particular, that the proposed crematory will alter
the character of their neighborhood from residential to industrial/commercial.
I.
Greenwood Cemetery comprises 43 acres in the Northwood section of
Philadelphia, and has been a burial ground since the 1830s.
2
The property is
currently listed on the Philadelphia Register of Historic Places (Letter from
Chairman of Philadelphia Historical Commission, Oct. 10, 2000, Reproduced
Record (R.R.) 410a), and the cemetery contains graves of veterans of the
Revolutionary War, the War of 1812, and the Civil War. (Nomination for
Greenwood Cemetery, entered Aug. 9, 2000, R.R. 404aa.) Applicants contend it is
1
If there is reason herein to refer to a specific member or members of the group of
Appellants, they will be identified by name.
2
The property was first used as a private cemetery. (Report of the Committee of Historic
Designation, Philadelphia Historical Commission, Reproduced Record (R.R.) 413aa.) The larger
Greenwood Cemetery was founded in 1869, and has been continuously used as a cemetery since
that time. (ZBA Decision Finding of Fact (FOF) ¶ 7.)
Page 3
3
a pre-existing, non-conforming use in an R-4 residential zoning district.
3
The
cemetery is surrounded by neighborhoods with “[a]t least six different zoning
classifications,” including C-2 and C-3 commercial, recreational, and an area
shopping center.
4
(Applicants’ Br. at 13.) On the grounds are five detached
structures and an area for parking. (ZBA Decision Finding of Fact (FOF) ¶ 1.)
Some of these structures are the result of three variances previously granted for the
property by the ZBA: (1) in 1965, for a private gas station accessory to the
cemetery; (2) in 1985, for erection of a two-family dwelling and an accessory,
detached garage; and (3) in 1995, for erection of two non-accessory signs (creating
the condition of multiple structures on one lot). (FOF ¶ 6.)
The cemetery is presently in a deteriorated condition; the grounds are
overgrown and impassable, monuments and grave markers are toppled and
damaged, and the buildings are dilapidated and structurally impaired. (FOF ¶ 7.)
3
The cemetery’s existence pre-dates Philadelphia’s zoning code, enacted in 1933.
Pursuant to Section 14-104(1) of the City of Philadelphia Zoning Code (Code):
Any structure, or the use of any land or structure or portion of a structure, which
was a non-conforming structure or use under the terms of the zoning ordinance of
August 10, 1933, as amended, shall continue to be a non-conforming structure or
use, which may continue at the same location, but shall be subject to the
provisions, limitations and restrictions of this Section governing non-conforming
structures and uses.
4
The cemetery grounds are bounded by Adams, Castor, Wyoming and Ramona Avenues.
To the north of the property is the Oakland Cemetery. (FOF ¶¶ 20, 22.) Abutting the property to
the south is Parkview Hospital. (FOF ¶ 22.) Directly across the street from the property are the
Tacony Creek Park and the Juniata Golf Course, which create a buffer between the property and
the residential neighborhood situated to the south and west. (FOF ¶ 22.) Southeast of the
property is an area shopping center. (FOF ¶ 24.)
Page 4
4
Greenwood has been cited by the Philadelphia Department of Licenses and
Inspections (L&I) for overgrowth of vegetation on the property. (FOF ¶ 7.)
Residents of the area have opined that the property, in its current physical state and
being subject to ongoing trash dumping and fire setting, is a blight on the
community. (FOF ¶ 30.)
Applicants filed a zoning and use registration application with L&I to obtain
approval to develop a funeral home and crematory on the grounds of the existing
cemetery.
5
They contend that providing on-site cremation is the trend in the
funeral business, and a crematory is a customarily incidental use to a cemetery.
5
Applicants were specifically seeking approval for three zoning and two use variances to
accomplish the following:
[T]he complete demolition of two (2) buildings, the erection of three (3)
accessory, off-street, private parking lots (“Lot A”, “Lot B” and “Lot C”), Lot A
to have 60 parking slots, Lot B to have five (5) handicapped-accessible parking
slots, and Lot C to have six (6) parking slots, the erection of one (1), two-story,
detached structure (“Building 1”) to be used as a cemetery, funeral home and
crematory offices, conference and arrangement rooms and merchandise selection
rooms, and the erection of one (1), two-story, detached structure (“Building 2”) to
be used as a cremation room, funeral and cremation gathering area, funeral home
preparation and refrigeration rooms, to exist on the same lot as a cemetery
receiving vault (“Building 3”), a two (2) family dwelling (“Building 4”)
(superintendent/grounds keeper), a cemetery garage and storage building
(“Building 5”), an existing cemetery, and two (2), freestanding, non-accessory,
outdoor advertising signs. (Application for Zoning and/or Use Registration
Permit No. 000229029).
(FOF ¶ 1; see also FOF ¶¶ 11, 12, 14, 15.) Applicants plan to operate the proposed crematory
Monday through Friday, from 7:30 a.m. until 6:00 p.m., and on Saturday, from 7:30 a.m. until
12:00 p.m.. (FOF ¶ 16.)
Page 5
5
(FOF ¶¶ 25, 26.) They wish to restore the cemetery
6
and most of the existing
structures, but contend this can be done only if the cemetery is made economically
viable by incorporating the proposed crematory into its operations. (FOF ¶ 8.)
L&I issued Notices of Refusal of Permit (two use and three zoning refusals),
finding the proposals for the subject property would not comply with area and use
regulations for an R-4 zoning district, in violation of Section 14-205 of the
Philadelphia Zoning Code (Code), and furthered “a condition of multiple structures
and multiple uses on one lot …,” in violation of Code Section 14-113 (prohibition
of multiple structures and multiple uses). (FOF ¶ 2; Notice of Refusal of Permit,
May 5, 2000, R.R. 4a.)
Applicants then filed a Petition of Appeal to the ZBA, arguing: (a) the
proposed funeral home and human crematory were permitted accessory uses to an
existing cemetery; (b) the new construction would replace deteriorated structures
and was lawful under regulations governing non-conforming uses and structures,
and (c) in the alternative, they were entitled to variance relief. The ZBA, after
public hearings on May 31, 2000
7
and June 28, 2000, granted Applicants’
alternative request for relief. Applicants were issued a use variance with
conditions, including a requirement that they satisfy all items listed in their
6
Applicants propose to spend $500,000 to restore the cemetery by clearing overgrowth of
vegetation, re-erecting and repairing grave markers and monuments, re-establishing cemetery
pathways, repairing the cemetery’s stone wall, demolishing deteriorated structures, and buffering
three accessory parking lots with landscaping. (FOF ¶¶ 13, 14.)
7
This hearing was continued at Applicants’ request to facilitate discussions with
Northwood Civic Association. (ZBA Hr’g Trans., May 31, 2000, R.R. 8a.) The ZBA actually
heard the case on June 28, 2000. (ZBA Hr’g Trans., June 28, 2000, R.R. 13-84a.)
Page 6
6
agreement with the Northwood Civic Association,
8
and eight requirements listed in
a proviso letter from Councilman Richard Mariano (FOF ¶¶ 4, 17, 28).
Based on its conclusion that the proposed crematory was expected to be the
main source of revenue for the property, the ZBA determined that the funeral home
and crematory were not permitted as a matter of right as accessory uses. (ZBA
Decision Conclusion of Law (COL) ¶ 5.) However, the ZBA concluded that
Applicants had satisfied the criteria for obtaining a variance under Code Section
14-1802(1) by establishing, among other things, unnecessary hardship. (COL ¶¶ 9-
(continued in part 2)

(continuation from part 1)

12.) The ZBA concluded that use of the property for residential purposes would
not be feasible because the property was an existing cemetery, and use of the
property as a cemetery only would be financially impractical; therefore, denial of
Applicants’ request to extend the current use of the property to include uses
compatible with the property’s existing cemetery would constitute unnecessary
hardship. (COL ¶ 9.) The ZBA also determined that Applicants’ hardship was not
self-imposed, the variances were the minimum necessary to afford relief, and
Applicants’ proposal would not adversely impact the public health, safety or
welfare. (COL ¶¶ 9-12.)
8
Included in the agreement, dated June 28, 2000, were requirements to: (1) establish an
advisory committee to oversee renovation and restoration of the cemetery and a $500,000 fund
set up to pay for this work; (2) preservation of the federal style in new structures; (3) landscaping
and buffering of parking areas; (4) restriction of hours of operation for crematory; (5) visual
screening from public rights-of-way of delivery and unloading of human remains. (Letter
Agreement, June 28, 2000, R.R. 87a-91a.) Applicants agreed to incorporate into their proposals
the restrictions and conditions enumerated in this agreement. (FOF ¶ 17.)
Page 7
7
Appellants appealed the ZBA’s decision to the trial court, which affirmed.
The trial court, without taking additional evidence, determined that the ZBA made
comprehensive findings supported by substantial evidence of record, and did not
abuse its discretion. The trial court also determined that the ZBA did not commit
an error of law because its findings were material to its legal conclusions (see, e.g.,
COL ¶¶ 6-12), and formed sufficient bases for its decision to grant the variances
for restoration of the cemetery. Appellants now appeal the trial court’s decision to
this Court.
9
II.
On appeal, Appellants argue: (1) the ZBA erred in finding unnecessary
hardship sufficient to support a use variance; (2) the ZBA’s finding that a proposed
human crematory would not be adverse to the public health, safety or welfare is not
supported by substantial evidence; and (3) the ZBA correctly concluded that a
human crematory and funeral home are primary uses and not permitted as uses
accessory to an existing cemetery.
9
In a zoning matter, where the trial court has not taken additional evidence, this Court’s
review is limited to determining whether the zoning board abused its discretion or committed an
error of law. Valley View Civic Ass’n v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d
637 (1983). A zoning board abuses its discretion if its findings are not supported by substantial
evidence. Id. Substantial evidence is such relevant evidence as a reasonable mind might
consider as adequate to support a conclusion. Id.
Page 8
8
Applicants present an alternative “counter-argument.”
10
Citing to Rabenold
v. Zoning Hearing Board of Palmerton, 777 A.2d 1257, 1263 n.7 (Pa. Cmwlth.
2001), Applicants propose that, “[a]lthough the ZBA analyzed this matter as a
variance case, and based its ruling upon that reasoning, this Court can sustain the
decision to issue the permit on alternative grounds.” (Applicants’ Br. at 25 n.61.)
Accordingly, Applicants contend that, as a non-conforming use, the cemetery is
entitled to expand its operations pursuant to the natural expansion doctrine.
A.
Appellants first argue that the ZBA erred in finding unnecessary hardship
sufficient to support a use variance. Applicants counter that the variance was
appropriately granted. To establish unnecessary hardship an applicant must show
that, due to its physical characteristics, the property cannot be used for any
permitted purpose, can conform only to such purpose at a prohibitive expense, or,
that the property has either no value or only distress value for any permitted
purpose. Rittenhouse Row v. Aspite, (Pa. Cmwlth., No. 817 C.D. 2005, filed
December 19, 2006); (COL ¶ 8.) The ZBA concluded, in relevant part, that:
9.
… to require Applicant[s] to use the property only as a
cemetery would be financially impractical. As demonstrated by
the property’s current physical state, the cemetery does not
generate the revenue necessary to maintain all forty-three (43)
acres. Therefore, if the [ZBA] were to restrict the use of the
10
Applicants actually present three so-called “counter-arguments”; two of them,
however, simply respond to Appellants’ arguments and, therefore, will be addressed accordingly.
Those two counter-arguments are: (1) in the alternative, proposed improvements constitute
reasonable accessory uses customarily incidental and subordinate to the property’s principal use
as a cemetery; and (2) the variance was appropriately granted. (Applicants’ Br. at 23.)
Page 9
9
subject property to a permitted purpose, the property would
have little or no value for Applicant[s].
10. The hardship presented is not self-imposed by Applicant[s].
11. The variance with the imposed provisos is the minimum
necessary to afford relief to Applicant[s].
(COL ¶¶ 9 – 11.)
After review of the record, we must agree with Appellants that Applicants
failed to present to the ZBA sufficient evidence of unique physical conditions or
prohibitive expense to establish unnecessary hardship and prevent their reasonable
use of the property. There is nothing in the record to preclude Applicants’
continued use of the property as a cemetery. Furthermore, Applicants provided no
proof, whatsoever, other than the purchaser’s self-serving remarks of the
cemetery’s financial distress, and no evidence that the cemetery does not produce
sufficient funds to cover its maintenance costs. Thus, Applicants failed to prove
that continued use of the property as a cemetery would be “financially
impractical.” Furthermore, Applicants failure to provide the ZBA with sufficient
evidence of the “dire” financial condition of the cemetery also prevents the ZBA’s
grant of a variance as a matter of strict business necessity to ensure its long-term
survival. See Bellosi v. Zoning Hearing Board of Clifton Heights Borough, 506
A.2d 997 (Pa. Cmwlth. 1986). Moreover, Applicants failed to provide any
evidence of the actual value of the property, or an accounting of the statutorily-
mandated perpetual care trust.
11
11
Every cemetery must set aside, annually, and deposit into a permanent lot care fund, at
least 15% of the gross amount of the purchase price of cemetery lots, and/or the construction
(Continued…)
Page 10
10
In addition, a variance should not be granted if the current condition of the
cemetery is due to the owner’s neglect, which would then be considered a self-
inflicted hardship. Greenwood has owned the property since 1869, and its counsel
basically admitted that the deteriorated condition of the property is due to decades
of neglect. (ZBA Hr’g Trans., June 28, 2000, at 8-9; R.R. 20a-21a.) The owner of
the property cannot create a hardship and then request a variance to remedy same.
Appeal of Grace Building Co., Inc., 392 A.2d 888 (Pa. Cmwlth. 1978).
B.
Appellants next argue that the ZBA’s finding that a proposed human
crematory would not be adverse to the public health, safety or welfare is not
supported by substantial evidence. Appellants argue that the ZBA lacked
substantial evidence when it found that placing a human crematory in a residential
community is in accord with public interest. Northwood is a residential
community, essentially unchanged in character or appearance for decades. (Arters’
Br. at 9.) Appellants argue that a funeral home and crematory will change the
character of the neighborhood because a funeral home is a commercial use and a
crematory is an industrial use. Applicants argue that the proposed use will not
negatively impact the public health, safety or welfare because it will comply with
all applicable government codes and regulations (FOF ¶ 18), be constantly
monitored by the city’s health department, and will allow for the elimination of
property that has become a public nuisance (COL ¶ 12).
costs of crypts sold in a mausoleum or niches sold in a columbarium, if applicable. 9 Pa. C.S. §
303.
Page 11
11
Section 14-1802(1)(c) of the Code requires the ZBA to consider whether the
variance will “substantially or permanently injure the appropriate use of adjacent
conforming property.” While Applicants have seemingly taken precautions to
ensure the public’s health, safety and welfare are protected, they have not provided
any evidence to show that operation of a funeral home and crematory will not
change the essential character and nature of this historic residential neighborhood,
or injure the appropriate use of neighboring, conforming property.
C.
Finally, Appellants argue that the ZBA correctly concluded that a human
crematory and funeral home are primary uses and not permitted as uses accessory
to an existing cemetery. Applicants counter that their proposed improvements
constitute reasonable accessory uses customarily incidental and subordinate to the
property’s principal use as a cemetery.
Section 14-102(2) of the Code defines an “accessory use” as “[a] use …
subordinate to and on the same lot as the main use on a lot and customarily
incidental to the main use ….” Thus, in order to support their counter-argument,
Applicants must prove: (1) that the proposed funeral home and crematory are
secondary to the use of the property as a cemetery; and (2) that a funeral home and
crematory are customarily incidental to properties used as cemeteries. The
determination as to whether the proposed funeral home and crematory are
accessory uses is a question of law and subject to our plenary review. Southco,
Inc. v. Concord Township, 552 Pa. 66, 713 A.2d 607 (1998).

(cont. in part 3)

(this is a continuation from part 2)

Page 12
12
Our Supreme Court has determined that, when evaluating whether one use is
accessory to another, the “secondary” or “subordinate” prong of the test depends
upon whether the use is “dependent upon” a property’s principal use. Southco,
Inc., 552 Pa. at 74, 713 A.2d at 611. Applicants provide no authority or discussion
which supports an argument that either a funeral home or crematory is dependent
upon a property’s principal use as a cemetery, nor do Applicants provide evidence
that a funeral home and crematory are customarily incidental to a cemetery. In fact,
Pennsylvania case law provides that “the operation of a crematory is an ancillary
service of a funeral home, which is a retail service establishment. Both funeral
homes and crematories deal with the final disposition of human remains through
either internment or cremation. Cremation is a use that is incidental or subordinate
to the operation of a funeral home….” Rabenold, 777 A.2d at 1263 (emphasis
added).
Furthermore, pursuant to Section 14-1602 of the Code, a new cemetery use
is allowed by ordinance only,
12
whereas a funeral home is permitted by right as a
principal use in commercial districts. (See Sections 14-302(1)(b)(6), 14-303(2)(g),
14-306.1(1)(e), and 14-306.2(2)(j) of the Code.) Thus, a funeral home is the
“fundamental” use in this appeal. (Appellants’ Reply Br. at 8.) A funeral home is
not allowed, however, in an R-4 residential district as either a principal or
accessory use. (Section 14-105 of the Code; COL ¶¶ 3, 4.)
12
Section 14-1602 of the Code permits cemeteries established prior to May 25, 1866, or
subsequently permitted by ordinance, to exist where otherwise prohibited. The property on
which Greenwood Cemetery now sits has been continuously used as a burial ground since the
1830s. (Report of the Committee on Historic Designation, Philadelphia Historical Commission,
R.R. 413aa.)
Page 13
13
We note that a zoning hearing board’s interpretation of its own zoning
ordinance is entitled to great deference and weight. Risker v. Smith Township
Zoning Hearing Board, 886 A.2d 727, 731 (Pa. Cmwlth. 2005). Thus, the ZBA
correctly determined that Applicants’ proposed funeral home and crematory would
be primary uses of the property and, thus, not accessory uses permitted as of right.
(COL ¶ 5.)
III.
We now address Applicants’ counter-argument that, as a non-conforming
use, the cemetery is entitled to expand its operations pursuant to the natural
expansion doctrine. 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,”
13
Jenkintown Towing Service v. Zoning
Hearing Board of Upper Moreland Township, 446 A.2d 716, 720 (Pa. Cmwlth.
13
To establish entitlement to a variance, an applicant must show:
(1) an unnecessary hardship will result if the variance is denied, due to the unique
physical circumstances or conditions of the property; (2) because of such physical
circumstances or conditions the property cannot be developed in strict conformity
with the provisions of the zoning ordinance and a variance is necessary to enable
the reasonable use of the property; (3) the hardship is not self-inflicted; (4)
granting the variance will not alter the essential character of the neighborhood nor
be detrimental to the public welfare; and (5) the variance sought is the minimum
variance that will afford relief.
Taliaferro v. Darby Township Zoning Hearing Board, 873 A.2d 807, 811-12 (Pa. Cmwlth. 2005)
(quoting Ruddy v. Lower Southampton Township Zoning Hearing Board, 669 A.2d 1051, 1053
(Pa. Cmwlth. 1995)); (see also Section 14-1802 of the Code). “The reasons for granting a
variance must be substantial, serious and compelling.” Valley View Civic Association v. Zoning
Board of Adjustment, 501 Pa. 550, 555, 462 A.2d 637, 640 (1983).
Page 14
14
1982) (quoting Walter v. Zoning Board of Adjustment (Philadelphia), 437 Pa. 277,
282, 263 A.2d 123, 126 (1970)), some of those requirements are more easily
satisfied when the existing use is non-conforming.
14
Therefore, we must determine
whether Applicants’ proposal actually constitutes an expansion of a current non-
conforming use, as they contend it does in their counter-argument, or whether it is
a new and different use.
The natural expansion doctrine provides that "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, neither is it essential that its exercise at the time the ordinance was
enacted should have utilized the entire tract upon which the business was being
conducted." Nettleton v. Zoning Board of Adjustment of the City of Pittsburgh,
574 Pa. 45, 51 n.3, 828 A.2d 1033, 1037 n.3 (2003) (quoting Humphreys v. Stuart
Realty, 364 Pa. 616, 621, 73 A.2d 407, 409 (1950)). The rationale of the doctrine
has its origins in the due process requirements protecting private property; if a
person owns property which constitutes an existing, legal, non-conforming use, it
is “inequitable to prevent him from expanding the property as the dictates of
business or modernization require.” Silver v. Zoning Board of Adjustment, 435
14
For example, regarding the first requirement, that there be unique physical
circumstances or conditions that cause unnecessary hardship, “the pre-existing nonconforming
use itself constitutes the physical ‘circumstances’ which, apart from other lot or land
characteristics, make the property uniquely different from others in the district.” Jenkintown
Towing Service v. Zoning Hearing Board of Upper Moreland Township, 446 A.2d 716, 720 (Pa.
Cmwlth. 1982).

(Continued in part 4)

Furthermore, a “lawful nonconforming use, established before any prohibition
can be known, does not invoke” the fifth requirement, that the hardship not be self-created. Id. at
722.
Page 15
15
Pa. 99, 102, 255 A.2d 506, 507 (1969). A municipality cannot, per se, prohibit the
natural expansion of a non-conforming use. Id. at 103, 255 A.2d at 508.
To determine whether a use qualifies as a continuation or expansion of a
non-conforming use, our Supreme Court has held that the proposed use need not be
identical to the current use. Domeisen v. Zoning Hearing Board of O’Hara
Township, 814 A.2d 851, 856 (Pa. Cmwlth. 2003). Rather, the proposed use must
be sufficiently similar to the non-conforming use as to not constitute a new or a
different use. Id.
Our Supreme Court has also held that a change in
instrumentality will not defeat the purpose or existence of a non-conforming use.
Township of Chartiers v. William H. Martin, Inc., 518 Pa. 181, 187, 542 A.2d 985,
988 (1998). The Court, in Chartiers, warned that an “overly technical assessment”
of an established non-conforming use cannot be utilized to “stunt” its natural
development and growth. Id. at 187-88, 542 A.2d at 988. Thus, the owner of a
non-conforming use may utilize modern technology into the business without fear
of losing that business. Id. at 189, 542 A.2d at 989.
However, the right to expand a non-conforming use is not unlimited, and a
municipality has every right to impose reasonable restrictions. Silver, 435 Pa. at
102, 255 A.2d at 507. For instance, the right to expand does not include the right
to add a second non-conforming use. Daley v. Zoning Hearing Board of Haverford
Township, 461 A.2d 347 (Pa. Cmwlth. 1983). While Applicants claim their
proposal merely expands the existing use on the property, they fail to provide
evidence sufficient to support their argument that a funeral home and/or a
crematory constitutes the natural expansion or modernization of a cemetery in the
Page 16
16
Commonwealth of Pennsylvania. Because we have already determined that both
a funeral home and a crematory are neither secondary, nor subordinate, to the
cemetery use on this property, but, instead, constitute new, different, and primary
non-conforming uses in their own right, we hold Greenwood Cemetery is not
entitled to expand its operations to include those uses pursuant to the natural
expansion doctrine.
15
15
Appellants contend that Greenwood has lost it non-conforming use status, pursuant to
Section 14-104(4)(b) of the Code, because variances have previously been granted for the
property in 1965, 1985 and 1995. (FOF ¶ 6; see also supra p. 3.) Section 14-104(4)(b) provides
that “[a] non-conforming structure or use shall cease to be considered as such whenever it
becomes the subject of a variance, granted by the Zoning Board of Adjustment or ordered by a
Court, and its non-conforming status shall not be reinstated thereafter.” Section 14-104(4)(b) of
the Code (emphasis added).
The burden of proving the existence of a non-conforming use rests with the landowner
asserting a non-conforming use. Collier Stone Company v. Zoning Hearing Board for the
Township of Collier, 710 A.2d 123, 125 (Pa. Cmwlth. 1988). The ZBA noted the existence of
prior variances on the Greenwood Cemetery property (FOF ¶ 6, COL ¶ 1), and did not mention
or discuss the cemetery’s non-conforming use status. Likewise, the trial court noted the prior
grant of variances on the property (Trial Ct. Op. at 3-4), and did not mention anything about the
existence of a non-conforming use. However, the ZBA, as the finder-of-fact, did not make the
necessary finding that the property no longer retains its non-conforming use status.
If a zoning hearing board or trial court fails to make findings necessary for this Court to
undertake appellate review, in most instances, we would enter a remand order; however, that is
unnecessary in this case. Regardless of whether the property loses or retains its non-conforming
status, our determination of the outcome remains the same: if the property no longer supports a
non-conforming use, we apply the more stringent use variance standard. Likewise, even if the
property retains its status as a non-conforming use, because we find Applicants’ proposal not to
be an expansion of that use, it is not entitled to the variance under that theory.
Page 17
17
IV.
Accordingly, based on the foregoing analysis, we reverse the order of the
trial court affirming the ZBA’s grant of variances.
______________________________
RENÉE COHN JUBELIRER, Judge
Page 18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Catherine Bradley Arter, Edward R.
:
Becker, Flora L. Becker, Gloria Boyd, :
Harold Byer, Susan Byer, Joseph L.
:
Capella, Patricia Doohan, Joyce
:
Halley, Jim Howarth, Jacqueline
:
Khoshnevissan, Joseph Menkevich
:
and Leonard Williams,
:
Appellants
:
:
v.
: No. 1335 C.D. 2005
:
Philadelphia Zoning Board of
:
Adjustment, Anna Batten, Ronald
:
Hancock, Carol Hancock, Nicholas
:
Bernardo, Richard T. Mariano, City
:
of Philadelphia, Delcasale Casey
:
Martin & Manchello, Francis J.
:
Hanssens, Jr., Greenwood Cemetery, :
Willow Ridge Ltd. and Northwood
:
Civic Association
:
O R D E R
NOW, February 8, 2007, the order of the Court of Common Pleas of
Philadelphia County is hereby REVERSED as to its affirmance of the
Philadelphia Zoning Board of Adjustment’s grant of variances regarding
Greenwood Cemetery, et al.
______________________________
RENÉE COHN JUBELIRER, Judge

"Because we have already determined that both
a funeral home and a crematory are neither secondary, nor subordinate, to the cemetery use on this property, but, instead, constitute new, different, and primary non-conforming uses in their own right, we hold Greenwood Cemetery is not
entitled to expand its operations to include those uses pursuant to the natural expansion doctrine."


That's how the game is played. The Community loses on the hearing and wins on the appeal.

All of Mariano's back-room dealing just faded away, like the fog lifts once the sun comes out.

I wonder when the "For Sale" sign will go up?

I am not a Northwood resident and out of the loop, but might some middle ground be desirable?

Greenwood Cemetery, with it's historic Benjamin Rush residence, is gravely in need of active care. I understand that nobody wants to live near a crematorium but wouldn't a funeral home (without a crematorium) provide a revenue producing operation that would be able to maintain the property?

A similar situation, the addition of a catering hall to Knowlton in Fox Chase, allowed for the saving and preservation of that Frank Furness masterpiece.

__________________
"Things are starting to get interesting right about now"

All comments made by me on his board are given freely and probably worth what you paid for them.

One of the points made by the Apellate Court in their ruling is that the Applicants provided no proof that the cemetery had insufficient revenue to provide for maintenance, save for the Applicants' self-serving statements.

Also, Peter Kelsen, their attorney, made it clear at the NCA meeting that he would not consider even limiting the crematory to a single burner--he insisted that his clients be given the right to expand the operation as they saw fit. (This in response to a question from Grace Muller about the possibility of a deed restriction limiting the cremation operations.) So I don't think that the middle ground really existed in the first place.

There has been speculation that the cemetery's trust funds have been used to pay their legal bills, substantially depleting the balance. I don't know if this is correct, but if it is, it would mean that the cemetery really is in jeopardy of being unable to sustain itself. I presume that the Commonwealth will need to look into this, as we private citizens have no authority to compel the owners to turn over the financial information.


Without the potential to generate revenues from the funeral home and cremation operations, I suspect that the current owners will now opt to extricate themselves from that property--and pronto. There is no money to be made in burials.

But, of course, cemeteries were not created with the objective of becoming cash cows. At best, the trust funds would be used to guarantee that the interest and dividends would generate income in perpetuity sufficient to cover the expenses of maintaining the grounds.

[quote=MyNorthwood.net;606076]So I don't think..., There has been speculation..., I don't know..., I presume..., I suspect...[quote]

That about sums up your entire knowledge of the situation.