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King v. Bensalem Township Zoning Hearing Baord6/30/2003
Appellants Eugene J. King, Jr. and John T. Shearstone appeal from the order of the Court of Common Pleas of Bucks County (common pleas) which affirmed the decision of the Bensalem Township Zoning Hearing Board (Board) denying appellants' application for a use and occupancy permit to use the detached garage on King's property as an automobile repair shop. The Board found a pre- existing nonconforming use had been abandoned. We affirm.
The subject property contains a single family residence and a detached garage. The detached garage housed an automobile repair facility through 1997, prior to King's purchase of the property in 1998. The property is zoned R-A, residential, and an automobile repair facility is not a permitted use in that zoning district. However, there is no dispute that the automobile repair shop lawfully existed prior to the adoption of the Township's zoning ordinance in 1954. Shearstone became the tenant of the detached garage in 2000.
In May 2000, Matthew K. Takita, M.C.O., Director of Building and Planning and Zoning Officer for the Township of Bensalem, rejected Shearstone's application for a use and occupancy permit to operate an automobile repair shop out of the garage. Appellants challenged this decision before the Board, asserting that the property had previously been used as an automobile repair shop and that the requested use was permitted as a continuation of the pre-existing nonconforming use. After hearings, the Board affirmed the zoning officer's decision, finding that the prior nonconforming use had been abandoned under Section 232-581(e) of the Bensalem Township Zoning Ordinance, which states:
If a nonconforming use of a building, or portion thereof, or of land is discontinued for a period of one (1) year, such nonconforming use shall not thereafter be re- established and the future use shall be in conformity with this Chapter.
In September 2000, the Board's decision was appealed to common pleas. Common pleas remanded the case to the Board in order to allow appellants to supplement the record with regard to King's alleged abandonment of the nonconforming use. In June 2001, the Board held another hearing to further develop the record, and in July 2001, the Board adopted supplemental findings of fact and conclusions of law. In October 2002, common pleas affirmed the Board's decision that the nonconforming use had been abandoned. The present appeal followed.
The party asserting abandonment of a nonconforming use has the burden to prove both that the landowner intended to abandon the use and that the use actually was abandoned. Latrobe Speedway, Inc. v. Zoning Hearing Bd. of Unity Township, 553 Pa. 583, 592, 720 A.2d 127, 132 (1998). Zoning provisions governing the abandonment of nonconforming uses of property create a presumption of the landowner's intent to abandon the nonconforming use if such use is not resumed prior to the expiration of the period set forth in the ordinance.
Id. Absent any evidence to the contrary, the lapse of the designated time will be sufficient to establish intent to abandon the use. Id. [quoting Pappas v. Zoning Hearing Board of Adjustment of the City of Philadelphia, 527 Pa. 149, 156, 589 A.2d 675, 678 (1991) (Zappala, J., concurring)]. Nonetheless, it is still necessary to prove actual abandonment. Smith v. Bd. of Zoning Appeals of the City of Scranton, 459 A.2d 1350, 1352 (Pa. Cmwlth. 1983). This must be shown by evidence such as overt acts, failure to act, or statements which indicate abandonment. Latrobe Speedway, Inc., 553 Pa. at 592, 720 A.2d at 132. Proof of nonuse due to events beyond the owner's or occupier's control, temporary discontinuance of use, or lapse of time
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