Opinion
Argued April 7, 1977
May 26, 1977.
Zoning — Scope of appellate review — Abuse of discretion — Error of law — Nonconforming use — Abandonment — Burden of proof — Intent — Gas station — Used car sales—Attempt to lease premises.
1. In a zoning case where the lower court took additional evidence, review by the Commonwealth Court of Pennsylvania is to determine whether the court below abused its discretion or committed an error of law. [332]
2. The burden of proving that the right to continue a nonconforming use of property has been lost by abandonment is upon the party asserting that the abandonment has occurred. [332]
3. A nonconforming use may properly be found to have been discontinued or abandoned where an intent to abandon is demonstrated by overt acts, a failure to act or oral or written statements. [334]
4. An intent to surrender a right to resume a nonconforming use may be presumed from the expiration of the time limitation imposed by a zoning ordinance for the exercise of such right, once it is established that the nonconforming use was abandoned. [334-5]
5. A nonconforming use of property as a gas station, garage, and used car lot may be found to have been abandoned when the major portion of the property is leased for use as an assembly and machine shop leaving only a small portion of the property which was economically unsuitable for lease for any of the original nonconforming uses. [335-6]
Argued April 7, 1977, before Judges KRAMER, WILKINSON, JR. and BLATT, sitting as a panel of three.
Appeal, No. 1424 and 1425 C.D. 1976, from the Orders of the Court of Common Pleas of Luzerne County in cases of Joseph Sando v. The Zoning Hearing Board of Hazleton and Joseph Thomas and Elizabeth Thomas, his wife, No. 10014 of 1975; and Robert J. Miorelli and Louise Miorelli, his wife, v. The Zoning Hearing Board of Hazleton, Joseph Thomas and Elizabeth Thomas, his wife, and Joseph Sando, No. 10073 of 1975.
Application for occupancy permits granted by zoning officer. Protestants appealed to the Zoning Hearing Board of Hazleton. Gas station permit granted. Used car lot permit denied. Applicants and protestants appealed to the Court of Common Pleas of Luzerne County. Permits denied. BIGELOW, J. Applicants appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Henry A. Giuliani, with him Thomas J. Carlyon, and Falvello, Ustynoski, Giuliani and Bernstein, for appellants.
Martin D. Cohn, with him Lawrence B. Cohn, and Laputka, Bayless, Ecker and Cohn, for appellees.
No appearance for intervenors.
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).
The Board had granted an occupancy permit for a gas station to be operated as a nonconforming use in an area zoned residential but had denied a permit to sell used cars on a lot adjacent to the station. Cross appeals were filed: the owners of the properties, Joseph and Elizabeth Thomas, and their tenant, Joseph Sando, appealed the denial of the permit for the lot and a group of neighbors appealed the granting of the permit for the gas station. The lower court took testimony from witnesses supplied by all concerned parties and ruled that occupancy permits could not be issued for either property because their nonconforming uses as a gas station and a used car lot had been discontinued and abandoned by the present owners for almost seven years prior to the Sando lease. This appeal by the owners and their tenant followed.
Robert Miorelli and Louise Miorelli, Leo Corazza and Mary Corazza.
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. Commw. 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. Commw. 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 owners had used the building as a gas station and garage, selling gasoline and repairing automobiles and buses, and the lot had been used for parking and the sale of used automobiles. These uses predated the adoption of the zoning ordinance of the City of Hazleton in 1962, which defined the area in which these properties are located as a residential R-3 district, limiting the area to residential uses. The gas station and the lot therefore became nonconforming uses in the area. The Thomases remodeled the building in 1968 and, apparently with the knowledge of the Hazleton Zoning authorities, rented the greater portion of the building to Urania Engineering (Urania) which utilized the first floor as an assembly shop and a machine shop and used the lot for parking cars belonging to the owners and employees of the company. The building's gas pumps and other service facilities were used by Thomas Kitchens, a company owned by Joseph Thomas, to furnish gas to and occasionally, to service its trucks. Urania left the property in 1975 and the Thomases then leased the building and lot to Joseph Sando for use as a gas station and used car lot. Based on this record, the lower court denied occupancy permits for both the building and the lot, holding that the original nonconforming uses of the properties as a gas station and garage and used car lot had been abandoned during the period of Urania's possession.
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 car lot.
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. Commw. 485, 284 A.2d 320 (1971). Likewise, we have held that, where a one-year time limitation on the right to resume a nonconforming 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. Commw. 84, 277 A.2d 176 (1971).
The appellants argue here that there was no abandonment of the nonconforming uses of the building and lot because there was no intent to abandon these uses during the Urania possession. They support this argument by making two contentions. First, citing Hilltown Township v. Horn, 13 Pa. Commw. 248, 320 A.2d 153 (1974), rev'd on other grounds, 461 Pa. 745, 337 A.2d 858 (1975), they argue that the use of the building's gas station and garage facilities by the owner's trucks and the use of the lot for employee parking during the period of Urania's lease was a limited continuation of the nonconforming uses to retain their nonconforming status and that this activity rebuts any presumption that the appellants intended to abandon these nonconforming uses. We disagree. In Hilltown Township, supra, we recognized that a limited continuation of a nonconforming use of property primarily to retain its nonconforming status is evidence of an intent not to abandon such use. Such is not the case here. The uses made of the building's service station and garage facilities and of the lot during the period of Urania's possession were not a continuation of the uses which had established the properties nonconforming status in 1962, but, throughout the seven-year period of Urania's possession, the building's gas pumps were used not at all for the retail sale of gasoline while the building's repair facilities were used only sporadically to repair the owner's trucks. Similarly, the lot was used only to provide parking for the tenant's employees and not for the sale of used cars. We agree, therefore, that the appellants discontinued the nonconforming uses of the building as a gas station and garage and the use of the lot as a used car lot during the seven-year period of the Urania possession and that this discontinuance is evidence of an intent to abandon the original nonconforming uses of the properties.
The appellants argue next, relying on Munhall Borough Council Appeal, 175 Pa. Super. 320, 104 A.2d 343 (1954), that the cessation of the original nonconforming uses for the period of Urania's possession was caused by their failure to obtain a suitable tenant despite their efforts to do so and that therefore there was no abandonment within the meaning of the zoning ordinance for the circumstances negate an inference of intent to abandon these nonconforming uses. Again we must disagree. In Munhall Borough, supra, the court held that an intent to abandon a nonconforming use could not be inferred from the fact that a property was vacant for over a year while the owners attempted to rent it to continue the nonconforming use. The record shows here that, after the owner had rented the larger portion of the building to Urania, he attempted to obtain a tenant to operate the remaining portion of the building as a gas station merely by placing signs in the building's windows. This attempt was unsuccessful, the prospective tenants evidently finding that the portion of the building offered by the appellants was unsuitable for use as a gas station and garage and uneconomic to be used solely for the sale of gasoline. In this situation, we do not believe that the cessation of the nonconforming uses during the period of Urania's possession was the result of circumstances over which the appellants had no control. On the contrary, the failure to obtain a tenant to continue the original nonconforming uses during this period was due to limitations imposed on the property which were necessitated by the appellants' introduction thereto of a different nonconforming use. We are in agreement, therefore, with the lower court's conclusion that the cessation of the original nonconforming uses of the properties during the period of Urania's seven-year possession was the result of the appellants' actions and that this cessation constituted an abandonment of these nonconforming uses.
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.
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.