A lawful nonconforming use establishes in the property owner a vested property right that cannot be abrogated or destroyed, unless it is a nuisance, it is abandoned, or it is extinguished by eminent domain. This determination is compelled by Pennsylvania's constitution, which recognizes the inherent and indefeasible right of citizens to possess and protect property, Pa. Const. art. I, § 1, and requires that just compensation be paid for the taking of private property, Pa. Const. art. I, § 10.
Appellant opened an adult bookstore in appellee township. Thereafter, appellee township enacted an ordinance making appellant's bookstore a nonconforming land use in its then location; the ordinance contained an amortization provision that would have required appellant to cease its business within 90 days. Appellant contested the validity of the amortization provision but the zoning board upheld it. The court likewise affirmed the dismissal of the appeal. On review, the state supreme court reversed appellee zoning board's determination that the amortization provision was valid.
Is the contested zoning ordinance violative of the constitution as a taking of property without just compensation?
The court held that the amortization and discontinuance of a lawful pre-existing nonconforming land use was per se confiscatory and violative of the Pennsylvania Constitution. Here, there was no evidence that appellant's bookstore violated obscenity laws or was in any other way unlawful, constituted a nuisance, or was abandoned. Thus, appellee township's ordinance was unconstitutional on its face, as it allowed an unconstitutional "taking" of appellant's property without just compensation.