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PSED successfully defended Allied Fence against claims by Pittsfield Township that Allied violated the zoning ordinance by selling Christmas trees on property located on Carpenter Road near Ellsworth Road.
Allied has used a fenced-in enclosure in its front yard for more than 30 years to sell a variety of retail products. When Pittsfield changed its zoning ordinance to prohibit sales activity in the front yard, Allied’s use was “grandfathered,” or in zoning terms, it became a “legal non-conforming use.” In December, 2018, Allied began selling Christmas trees from its fenced-in enclosure; Pittsfield Township issued zoning violation tickets claiming the sales were prohibited by the zoning ordinance.
Scott Munzel, the PSED property law and real estate attorney who represented Allied, argued that the fenced-in area could be used to sell the Christmas trees as long as the sales activity didn’t increase the intensity of the non-conforming use or enlarge the footprint of the existing sales activity. Because the Christmas trees were being sold inside the fenced-in area and customers used the existing driveway and parking lot to enter and park on the property, there was no increase in intensity or enlargement of the non-conforming use, Munzel argued.
Judge Richard Conlin agreed. He ruled that Allied’s modest sales of Christmas trees wouldn’t increase the intensity or enlarge the area of use, and was therefore within its legal non-conforming rights. Judge Conlin also dismissed the zoning violation tickets. Both Munzel and Allied were pleased with the results, which are consistent with non-conforming rights zoning principles.
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