Is Any Commercial Use In a Residential Area Is Automatically Deemed a Nuisance Per Se ?
The Supreme Court has opined as follows:
When owners of real estate in a residential area desire to preserve their neighborhood in an unchanged condition, they must secure appropriate zoning ordinances or be protected by building restrictions.
In the absence of zoning ordinances or restrictions any citizen may purchase real estate in the area and use it for any lawful purpose.
This is his constitutional right.
However, in so using the premises he must not create a nuisance, which affects health, safety or morals.
In judicially determining whether a nuisance exists, many uses, by their very natures, incontrovertibly constitute nuisances in a residential district which will be so decreed as a matter of law.
The existence of other nuisances must be established by testimony as in other cases. . . .
'Because certain types of business, by the necessary incidents of their normal operation, deleteriously affect the health and comfort of the community, their establishment in residential districts has been held to constitute a nuisance as a matter of law. Menger v. Pass, 367 Pa. 432, 434-35, 80 A.2d 702, 703 (1951)
In Groff v. Borough of Sellersville, 12 Pa. Commw. 315, 314 A.2d 328 (Pa. Cmwlth. 1974), the court defined a nuisance as follows:
"In legal phraseology, the term 'nuisance' is applied to that class of wrongs that arise from the unreasonable, unwarrantable, or unlawful use by a person of his own property, real or personal, . . . working on obstruction or injury to a right of another, or of the public, and producing such material annoyance, inconvenience, discomfort or hurt that the law will presume a consequent damage. . . ."
"A public nuisance is an inconvenience or troublesome offense that annoys the whole community in general, and not merely some particular person, and produces no greater injury to one person than to another--acts that are against the well-being of the particular community--and is not dependent upon covenants.
The difference between a public and a private nuisance does not depend upon the nature of the thing done but upon the question whether it affects the general public or merely some private individual or individuals. . . ." Id. at 330.