Opinion
No. 1808 C.D. 2013
06-26-2014
Wissahickon Interested Citizens Association Inc. and Chip Roller, Appellants v. The Philadelphia Zoning Board of Adjustment and David Branigan
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Wissahickon Interested Citizens Association Inc. and Chip Roller (collectively, Association) appeal from the Philadelphia County Common Pleas Court's (trial court) August 21, 2013 order affirming the Philadelphia Zoning Board of Adjustment's (ZBA) decision denying the Association's appeal. Essentially, the issue before this Court is whether the trial court erred in affirming the ZBA's determination that failure to maintain a rental license and failure to rent the second and third floors of a triplex do not constitute abandonment of the property's use as a three-family dwelling. After review, we affirm.
David Branigan (Branigan) owns a triplex located in Wissahickon (Property). The neighborhood is a mixture of single-family, two-family and three-family dwellings. There is another triplex located on the same block as the Property. From 1933, the year the Philadelphia Zoning Code (Code) was adopted, until the first substantial Code amendment in 1963, the Property was located in a "C" Residential District (District). The uses allowed in the District included detached and semi-detached multiple dwellings. In 1963, the District was restricted to single-family dwellings.
In 1948, the ZBA granted a dimensional variance for the Property because it lacked the required side yard width. The dimensional variance was not for the legal three-family use of the Property. Branigan purchased the Property from the estate of the previous owner on February 21, 2012. The previous owner had not used the Property as a multi-family dwelling since approximately 2003 and did not renew the rental license between 2006 and 2011. However, photographs introduced at the ZBA hearing demonstrated that the Property was maintained as a three-family dwelling. There was no attempt to dismantle the three-family configuration. Each unit within the Property has its own differently-keyed door lock, kitchen, bathroom, bedroom, and other indicia of a separate dwelling. Additionally, Branigan testified that when he first viewed the Property there was a working fire and smoke alarm system, including strobe lighting that met the standards for multi-family dwellings as regulated by the 2006 Philadelphia Fire Code, and was presumably installed by the previous owner.
Moreover, the Property Assessment Office continued to assess and tax the Property as a three-unit building, and the previous owner offered the Property for sale as a three-family dwelling. Branigan's purchase of the Property was contingent on the seller providing triplex zoning permits. At settlement, Branigan received from the seller a current Housing Inspection License for three units. Branigan also received a Certification Statement issued by the Department of Licenses and Inspections (L&I) confirming that the Property was a legal three-family dwelling. After settlement, Branigan applied for his own Housing Inspection License. On March 19, 2013, L&I issued Branigan a license indicating the use of the Property as three units and permitting Branigan to rent them. Branigan subsequently applied for and received the necessary permits to make improvements to the Property.
On March 29, 2012, the Association appealed from L&I's issuance of the Housing Inspection License to the ZBA asserting that the Property lost its legal non-conforming use status because the previous owner had not used it as a three-family dwelling for more than three years. On September 19, 2012, the ZBA held a public hearing. At the conclusion of the hearing, the ZBA unanimously voted to deny the Association's appeal. The Association appealed to the trial court which affirmed the ZBA's decision. The Association appealed to this Court.
The Association argues that based on Appeal of Haller Baking Company (Haller Baking), 145 A. 77 (Pa. 1928), Borough of Cheswick v. Bechman, 42 A.2d 60 (Pa. 1945) (Cheswick Borough), and Marchese v. Norristown Borough Zoning Board of Adjustment, 277 A.2d 176 (Pa. Cmwlth. 1971), the Property's use as a three-family dwelling was not a legal non-conforming use, and if it was, said use was abandoned. We disagree.
In Marchese, an owner of a legal non-conforming garage used for daily parking and maintenance of construction trucks (specifically bulldozers, loaders, and thirty-five other trucks) and equipment, moved the majority of his business from the garage and used it primarily for storage. Thereafter, owner leased the garage to a tenant who used it to install refrigeration equipment onto small ice cream vending vehicles owned, in most instances, by other individuals. The "Good Humor" type trucks would be brought to the garage by their owners, the tenant would install the refrigeration equipment within a few days, and then the trucks would leave the garage. However, the tenant only used the garage for this purpose during the first 7 months of its 4 year lease. Upon expiration of the lease, the owner resumed using the garage for the non-conforming use of daily parking and maintenance of construction trucks and equipment. Neighbors appealed to the Norristown Borough Zoning Board of Adjustment seeking a prohibition against the garage's current use. The owner argued that the 4 year lease agreement with tenant "by its mere existence tolls the running of the one year limitation[.]" Marchese, 277 A.2d at 184. The Court rejected that argument stating that the right to continue a non-conforming use runs with the land, not any one individual. Moreover, "where a lessee is a tenant in name only, and the tenancy agreement in effect is a 'hollow' lease, the mere existence of the lease without substance should not be heard to toll the running of the one-year limitation period and to freeze the non-conforming use indefinitely." Id.
The Marchese Court opined:
We note the apparent conflict with the Supreme Court's words in [Haller Baking]. We distinguish the instant case because [Haller Baking] involved the question of whether a particular use existed at the time of the adoption of the zoning ordinance (i.e., what the 'existing use' was at that time), whereas this appeal deals with the question of whether a non-conforming use has been abandoned. There is a substantial difference between determining whether a particular use exists at the time the initial zoning ordinance is enacted and determining whether a non-conforming use continues to exist or has been abandoned over a period of time since the ordinance enactment. The first examination is confined to one day, while the second, at least under the ordinance in this case, is limited to 'at least one year,' during which time, of necessity, close scrutiny is given to the 'concurrence of facts, circumstances, and the intention of the owner.'
Indeed, the [Haller Baking Court held that] 'the ordinance indicates that a building's capacity for use is the determinative quality (which is the test on the day the zoning ordinance is enacted), not its actual use (which is the test over a period of time to ascertain if the non-conforming use has been continued or has been abandoned).' ([E]mphasis added)[.] Again, [the Haller Baking Court] said existing use '* * * is not to be determined on the basis of actual or substantial use on the date of the adoption of the ordinance.' ([E]mphasis added)[.]Id. at 185 (footnote omitted; emphasis added). As explained by the Marchese Court, Haller Baking is distinguishable because it addressed the property's use "at the time of the adoption of the zoning ordinance." Id. Cheswick Borough also involved the issue of the property's use existing at the time the ordinance was enacted, and therefore is inapposite.
The issue in Marchese, like the instant case, is "whether a non-conforming use has been abandoned." Id. In the instant case, the Property's construction as a three-family dwelling was originally a permitted use. The 1948 variance was obtained to comply with side yard set-back requirements. Thereafter, when the Code was amended in 1963 to allow only single-family dwellings, the Property's three-family dwelling construction became a legal non-conforming use based on its existing use at the time of the amendment to the ordinance. The Property's construction has not changed in any way since that time.
The Association maintains that the non-conforming use is not permitted under the Code's discontinuance provision. Section 14-104(5)(b) of the Code, the discontinuance provision, states that "[a] non[-]conforming use when discontinued for a period of more than three consecutive years shall be considered abandoned and may not be resumed . . . ." This Court has explained:
The Supreme Court stated in Latrobe Speedway, Inc. v. Zoning Hearing Board of Unity Township, . . . 720 A.2d
127 ([Pa.] 1998), that failure to use for the specified time under a discontinuance provision is evidence of intent to abandon, which shifts the burden to the party contesting the claim of abandonment, but the introduction of evidence of a contrary intent rebuts the presumption and shifts the burden of persuasion back to the party claiming abandonment. Further: 'What is critical is that the intention to abandon is only one element of the burden of proof on the party asserting abandonment. The second element of the burden of proof is actual abandonment of the use for the prescribed period. This is separate from the element of intent.' Id. . . . at 132. This Court has stated that non-use alone will not satisfy a party's burden to prove abandonment, i.e., '[a]ctual abandonment must be demonstrated by other evidence, such as overt acts, a failure to act, or statements.' Latrobe Speedway, Inc. v. Zoning Hearing Board of Unity Township, 686 A.2d 888, 890 (Pa.[ ]Cmwlth.[ ]1996), aff'd, . . . 720 A.2d 127 ([Pa.] 1998). Also, an interval between the departure of one lessee and the occupancy of another does not constitute abandonment.Finn v. Zoning Hearing Bd. of Beaver Borough, 869 A.2d 1124, 1127 (Pa. Cmwlth. 2005) (emphasis added).
Here, to meet its initial burden, the Association relied solely on the testimony of two persons who live in the same block as the Property. Neither of the witnesses had ever personally observed the entire interior of the Property. One witness, Jeffrey Allegretti, testified that he had once visited the former owner on the first floor of the Property. The other witness, Sandra Dunn, related that she had visited an occupant of the second floor apartment. Despite their lack of familiarity with the Property, each witness believed that the three apartments at the Property had not been simultaneously occupied since 2005. Conceding that the Association met its initial burden, Branigan provided evidence that the Property continued to be assessed and taxed as a non-conforming apartment building, that there was no attempt to dismantle the three-family configuration of the Property, and that the owner offered the Property for sale as a three-family dwelling and provided proof of the legal three-family use to Branigan in the form of a current L&I License and Certification. The foregoing evidence of contrary intent shifted the burden back to the Association to show the owner's intent to abandon the three-family use. The burden is heavy: proof of intent to abandon must be made with direct evidence; intent to abandon cannot be inferred. Finn. The Association offered no other evidence to show that the owner intended to abandon the three-family use. Accordingly, "[t]he [Association] did not meet its burden to show abandonment so as to overcome [Branigan's] right to continue" the non-conforming use. Id. at 1129.
The Association further contends that the non-conforming use was extinguished when the three-year limitation period ran because there was no valid lease in place, there was no attempt to rent or sell the property and there was no mandatory L&I rental license. The Association argues that the trial court's ruling is contrary to the purpose of Section 14-104 of the Code which is to keep variances temporary so properties are used in conformity with the Code.
Initially, we note, this case does not involve a use variance. As stated above, the original variance was obtained because the Property did not have the required side-yard width. Secondly, there is no dispute that the Property was a three-family dwelling at the time the Code was amended restricting the District to one-family dwellings. Thus, the Property's construction as a three-family dwelling is a legal non-conforming use. L&I Deputy Commissioner Fink (Fink) explained in his March 19, 2012 letter:
[L&I's] position is that a claim of discontinuance of a use cannot be based solely upon the failure to pay a license fee. To consider the non-conforming use to be discontinued, [L&I] would need to prove the owners intent to abandon the use. We would inspect to see if the building was kept secure and properly maintained. We would determine if the
fire alarm was removed or other alterations were performed to change the use of the building. In the case of the . . . Property, we found no such evidence to prove intent by the owners to abandon the use of the building as a three-family dwelling. The property is assessed as a three-family dwelling and tax accounts are current. The fact that some of the dwelling units were not occupied does not mean the use of the building changed or ended.Fink Letter, Supplemental Reproduced Record at 1.
Here, in response to a neighbor's complaint, L&I investigated the Property. That investigation revealed that the fire alarms had been maintained, no alteration to change the use of the building had occurred and the multi-family tax obligation was current. L&I did not find any evidence that the owner intended to abandon the three-family use. Accordingly, L&I's method is consistent with both Latrobe Speedway and Finn.
It is undisputed that the former owner occupied one of the apartments until his death; that he maintained the Property as a three-family dwelling; that the fire safety system met the code-required standard for a three-family use; and that the tax assessment was based on the three-family use. The non-conforming aspect of the Property - that it contained three separate apartments - has continued without interruption since 1948. The fact that not all of the apartments within the owner-occupied Property were simultaneously occupied after 2005 does not, by itself, show an intent to abandon the non-conforming nature of the Property. Every other material element established that there was never an intent to abandon the three-family use. L&I's determination as related in Fink's letter reveals that L&I conformed to the holdings of Latrobe Speedway and Finn. Accordingly, the trial court properly affirmed the ZBA's denial of the Association's appeal.
For all of the above reasons, the trial court's order is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 26th day of June, 2014, the Philadelphia County Common Pleas Court's August 21, 2013 order is affirmed.
/s/_________
ANNE E. COVEY, Judge
Where, as here, the trial court takes no additional evidence, this court's scope of review is limited to determining whether the ZBA committed an abuse of discretion or an error of law. A conclusion that the [ZBA] abused its discretion may be reached only if the [ZBA's] findings are not supported by substantial evidence. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.N. Chestnut Hill Neighbors v. Zoning Bd. of Adjustment of Phila., 928 A.2d 418, 423 n.6 (Pa. Cmwlth. 2007) (citations omitted).