38 Pa. Commw. 193 | Pa. Commw. Ct. | 1978
Lead Opinion
Opinion by
The Grace Building Co., Inc. (appellant) appeals here from an order of the Court of Common Pleas of Lehigh County which affirmed a decision of the Zoning Hearing Board of the City of Allentown (Board). The Board denied the appellant a permit to continue the nonconforming use of its property as a social club on the basis that this use had been abandoned.
The property concerned is a building which was used as a social club for nearly 50 years, from 1923 to 1972, by the Knights of St. George Home Association Inc. (Knights). It contains a social room, bar facilities, a kitchen and dining area, bowling alleys and a meeting room, and it was purchased by the appellant in 1971, with the Knights still continuing to lease and use it as a social club. On March 6, 1972, however, the building was closed as the result of a robbery and the Knights’ lease was terminated on May 17, 1972.
Our scope of review, where no additional evidence was presented to the lower court, is to determine whether or not the Board abused its discretion or committed an error of law. Camaron Apartments Inc. v. Zoning Board of Adjustment, 14 Pa. Commonwealth Ct. 571, 324 A.2d 805 (1974).
The property here concerned is located in a zone described as R-H Residential in Allentown’s zoning ordinance, which permits a social club only as a special exception in such a zone. It is uncontested, however, that, while the property was used as a social club, this
2804(3) A use not conforming to the regulations of the zone in which it is located, prior to April 24, 1948, which becomes unoccupied or unused and remains unoccupied or is not used during any continuous period of twenty-four (24) months, shall not be occupied except by a use which conforms to the district in which it is located.
The Board found here that the “actions of the . . . Knights ... in closing the building and discontinuing the sale of alcoholic beverages in early March 1972, constituted an abandonment of the premises for use as, a social club” and that “the evidence did not indicate any use or occupation of the premises as a social club for a period of at least two years, following March 6, 1972. ”
The right to continue a nonconforming use runs with the land and the fact that a tenant ceases the use is not in itself controlling. See Eitnier v. Kreits Corporation, 404 Pa. 406, 172 A.2d 320 (1961). The social club use therefore could not have been deemed abandoned when the tenant-Knights discontinued the use.
We have previously held that where an ordinance places a time limitation on the right to resume a nonconforming use, the intention to surrender the right may be presumed from the expiration of the designated period, but it is still necessary to show the concurrent overt acts or failure to act which indicate abandonment. Miorelli v. Zoning Hearing Board, 30 Pa. Commonwealth Ct. 330, 373 A.2d 1158 (1977); Marchese v. Norristown Borough Zoning Board of Adjustment, 2 Pa. Commonwealth Ct. 84, 277 A.2d 176 (1971). Moreover, although the law also encourages compliance with the applicable zoning ordinance, DiNardo v. City of Pittsburgh, 15 Pa. Commonwealth Ct. 279, 325 A.2d 654 (1974), it is clear that a property owner has a constitutional right to continue a nonconforming use until the municipality proves its abandonment. Baird v. Zoning Board of Adjustment, 20 Pa. Commonwealth Ct. 236, 340 A.2d 904 (1975). The appellant argues here that the evidence presented clearly indicates that there had not been any abandonment and that no intention to abandon use can be implied. In a very similar case, Munhall Borough Council Appeal, 175 Pa. Superior Ct. 320, 104 A.2d 343 (1954), our Superior Court held that an intention to abandon a nonconforming use could not be inferred merely from the fact that a property was vacant for over a year while the owners attempted to rent it.
Our review of the records reveals no evidence of intent on the part of the appellant-owners to abandon the social club use of the building but rather a continuing and ultimately successful attempt on their part to maintain and use the premises for social club purposes during the entire period that the property lacked a tenant as in Munhall Borough Council Appeal, supra. The record lacking any evidence indicating overt acts or failure to act by the appellant which would indicate that the social club use was abandoned, we believe that the municipality has failed to meet its
Order
And Now, this 19th day of October, 1978, the order of the Court of Common Pleas of Lehigh County is hereby reversed and the case is remanded to the Zoning Hearing Board of Allentown for action consistent with this opinion.
In 1971, the property was purchased at a tax foreclosure sale by the appellants and the termination of the Knight’s lease was because. of rent payment delinquencies.
The Board’s findings of fact indicate that activities of the Knights had substantially diminished before their lease ended. The Board found that the last use of the building’s bowling alleys was in 1970, the last Communion breakfast was in the spring of 1971, the last official meeting was in November, 1971 and the last beer and liquor store purchase was made in March of 1972.
We read the words “unoccupied or unused” in this ordinance as the equivalent of the word “abandoned.” See Miorelli v. Zoning Securing Board, 30 Pa. Commonwealth Ct. 330, 373 A.2d 1158 (1977).
We also note the case-of Bitea Zoning Appeal, 60 Luz. L.R. 161 (1970), where the owner’s property had been used for more than
Dissenting Opinion
Dissenting Opinion by
I must respectfully dissent. As quoted by the majority, Section 2804(3) of the ordinance provides that the right to continue the non-conforming use is lost if the premises “becomes unoccupied or unused and remains unoccupied or is not used during any continuous period of twenty-four (24) months.” I do not see any issue of abandonment. The majority acknowledges that the property remained “unoccupied or unused as a social club for a continuous 2 year period.” That concludes the matter. I would affirm the order of the trial court.