30 Pa. Commw. 330 | Pa. Commw. Ct. | 1977
Opinion by
Herein consolidated are appeals from two orders of the Court of Common Pleas of Luzerne County which affirmed in part and reversed in part a decision of the Hazleton Zoning Board of Adjustment (Board).
In a zoning case where the court below took additional evidence, review by this Court is limited to a determination of whether or not the lower court abused its discretion or committed an error of law. Harrisburg Fore Associates v. Lower Paxton Township, 21 Pa. Commonwealth Ct. 137, 344 A.2d 277 (1975). The appellants argue here that the lower court committed an error of law in denying the permits because the nonconforming uses of the building and the lot had never been abandoned.
The question of abandonment is one of fact which depends upon an examination of all of the various factors present in an individual case, and the burden of proving an abandonment of a nonconforming use is on those who assert the abandonment. Township of Upper Moreland v. Gaunt, 16 Pa. Commonwealth Ct. 334, 328 A.2d 556 (1974). The evidence as found by the lower court is that the properties involved here were acquired by the Thomases in 1968. The prior
The pertinent sections of the Hazleton City Zoning Ordinance concerning the abandonment of nonconforming uses provide:
61.41 When nonconforming use of land ceases, and operations discontinued for a period of 12 calendar months, or more, the subsequent use of such land shall revert to conform to the regulations of this ordinance, and amendments thereto.
61.42 If a nonconforming use of a building or part thereof ceases and discontinues operations for a period of more than twelve (12) calendar months, any subsequent use of such building or part thereof shall conform to the regulations specified in this ordinance.
We have previously recognized that the word “discontinued” as used in a zoning ordinance is the equivalent of the word “abandoned” and that this term includes the concept of intent to abandon which is to be ascertained from overt acts, or failure to act, as well as from oral or written statements. West Mifflin v. Zoning Hearing Board, 3 Pa. Commonwealth Ct. 485, 284 A.2d 320 (1971). Likewise, we have held that, where a one-year time limitation on the right to resume a nonconf orming use is imposed by a zoning ordinance, 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. Marchese v. Norristown Borough Zoning Board of Adjustment, 2 Pa. Commonwealth Ct. 84, 277 A.2d 176 (1971).
The appellants argue here that there was no abandonment of the nonconforming uses of the building and
The appellants argue next, relying on Munhall Borough Council Appeal, 175 Pa. Superior Ct. 320, 104
The order of the lower court is affirmed.
Order
And Now, this 26th day of May, 1977, the order of the Court of Common Pleas of Luzerne County, dated July 22, 1976 and numbered 10014 of 1975, is hereby affirmed.
Order
And Now, this 26th day of May, 1977, the order of the Court of Common Pleas of Luzerne County, dated July 22, 1976 and numbered 10073 of 1975, is hereby affirmed.
Robert Miorelli and Louise Miorelli, Leo Corazza and Mary Corazza.
The relevant Hazleton Zoning regulation limits uses in an R-3 residential district to the following:
a. Single-family detached house,
b. Single-family semi-detached house,
c. Two-family detached house,
d. School, public, private or parochial,
e. Church,
f. Park, recreation or athletic fields, but not commercially-operated.
The legality of this change in nonconforming uses is not challenged, the appellees restricted their appeal below to the legality of the resurrection of the uses of the properties as a gas station and used ear lot.
Joseph Thomas testified that a prospective tenant had discovered that the area offered for rent was too small to meet the necessary area requirements to be certified as a motor vehicle inspection station.