TKO Realty, LLC v. Zoning Hearing Board
2013 Pa. Commw. LEXIS 428
| Pa. Commw. Ct. | 2013Background
- TKO Realty purchased a condemned property at 721-723 Columbia Street, Scranton, zoned R1-A (single-family/twin) and sought permits to rehabilitate it as multi‑unit housing.
- TKO initially sought a permit for five units; the City denied it as inconsistent with the zoning ordinance and as an abandoned nonconforming use. ZHB and trial court denied relief; this Court previously held TKO had not proven a lawful five‑unit use.
- TKO later sought a permit and registration for a three‑unit dwelling. Evidence included: a 1924 zoning map permitting apartments, a 1960 assessor card listing the property as a three‑family dwelling, historical utility/assessment data, and continued assessment as three units.
- The Zoning Hearing Board (ZHB) denied the three‑unit claim, finding the multi‑use had been abandoned (vacant/condemned for over six months). The trial court affirmed; TKO appealed.
- The Commonwealth Court held TKO proved a preexisting lawful three‑unit nonconforming use dating to at least 1960 and that the use was not actually abandoned despite a period of involuntary vacancy due to foreclosure and condemnation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Existence of lawful preexisting nonconforming use (three units) | Historical zoning, 1960 assessor card, tax/utility records show three‑unit use predating 1965 reclassification | City: no proof the three‑unit use was lawfully created and maintained under later ordinances | Held for TKO: evidence established lawful three‑unit nonconforming use predating prohibitory restriction |
| Abandonment after vacancy/condemnation | Vacancy resulted from foreclosure/condemnation—events beyond owner control, so no actual abandonment | City: ordinance presumes abandonment after 6 months' discontinuance; property was vacant >6 months | Held for TKO: discontinuation may raise presumption, but here no actual abandonment because vacancy was involuntary |
| Effect of failure to obtain certificate of nonconformity or register under Rental Registration Ordinance | Lack of certificate or registration does not strip owner of right to continue lawful nonconforming use | City: 1993 Ordinance requires proof of compliance/registration since 1993; failure shows intent/actual abandonment | Held for TKO: absence of certificate or registration does not extinguish constitutional/right to continue a lawful nonconforming use |
| Burden of proof and applicable ordinance timeframe | TKO: met burden by showing historic lawful use and continued assessment as three units | City: under 1993 Ordinance plaintiff must show use since 1993 and compliance with registration/building codes | Held: burden on owner but TKO met it with historical evidence; ZHB erred in denying permit on abandonment/nonconformity grounds |
Key Cases Cited
- Bevans v. Township of Hilltown, 457 A.2d 977 (1983) (landowner bears burden to prove preexisting lawful nonconforming use)
- Hager v. West Rockhill Township Zoning Hearing Board, 795 A.2d 1104 (2002) (nonconforming use arises when a lawful existing use is later prohibited by zoning change)
- Hafner v. Zoning Hearing Board of Allen Township, 974 A.2d 1204 (2009) (use predating prohibitory restriction qualifies as lawful nonconforming use)
- DoMiJo, LLC v. McLain, 41 A.3d 967 (2012) (absence of a certificate of nonconformity does not eliminate right to continue a lawful nonconforming use)
- Zitelli v. Zoning Hearing Board of the Borough of Munhall, 850 A.2d 769 (2004) (party asserting abandonment must prove intent and actual abandonment)