 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
King v. Bensalem Township Zoning Hearing Baord6/30/2003
between the departure of one lessee and the arrival of another is insufficient to establish abandonment. Id. A zoning hearing board may base a finding of abandonment on disputed testimony which it has resolved against the applicant. Williams v. Salem Township, 500 A.2d 933, 936 (Pa. Cmwlth. 1985).
Appellants assert that the Board erred in concluding that the nonconforming use had been abandoned because appellants have rebutted the presumption of intent to abandon and the Township has failed to meet its burden of proving both intent to abandon and actual abandonment. Appellants, citing Metzger v. Bensalem Township Zoning Hearing Board, 645 A.2d 369 (Pa. Cmwlth. 1994), assert that the use was not abandoned because the nonuse of the garage was due to economic causes and events beyond King's control. Appellants assert that a back problem prevented King from performing the necessary work to prepare the garage for rental, and use of the garage was delayed due to King's search for an appropriate tenant. Appellants also rely upon Money v. Zoning Hearing Board of Haverford Township, 755 A.2d 732, 737 (Pa. Cmwlth. 2000), to support their contention that the nonuse of the garage does not constitute abandonment. Appellants note that automotive parts and repair equipment from the prior owner remained in the garage until early 2000 when they were removed for Shearstone, the new tenant seeking to operate an automotive repair shop. Further, appellants note that King hired someone to repair the leaky roof of the garage.
The cases relied upon by appellants are distinguishable. In Money v. Zoning Hearing Board of Haverford Township, 755 A.2d 732, 737 (Pa. Cmwlth. 2000), the landowner stored a car, some wood and cases of coffee mugs in a dilapidated garage, which was evidence of the use of the garage thereby negating any assertion of abandonment. Appellants contend that the instant case is like Money in that King has made use of the garage by repairing the roof and storing the parts and equipment left behind by the prior owner. However, in Money the nonconforming use was the garage itself and the owner used it as a garage by storing certain items inside; thus, the protestants could not prove abandonment. Here, King has not used the garage in any manner during the applicable one year period that would indicate intent to continue to use the garage as an automobile repair shop.
In Metzger v. Bensalem Township Zoning Hearing Board, 645 A.2d 369 (Pa. Cmwlth. 1994), the court found that the protestants failed to prove actual abandonment because the discontinuance of the use resulted from financial difficulties beyond the landowner's control. Appellants contend that the nonuse of the garage as an automotive repair shop was due to circumstances beyond King's control, namely a back problem that prevented him from making the necessary repairs to the garage and his inability to find a suitable tenant. However, the Board found that King did not make any effort to secure a tenant for the premises and King did not make any renovations to the garage after his back injury had improved. Thus, the lack of use was not due to circumstances beyond King's control.
In the present case, there is no dispute that appellants failed to use the property as an automobile repair shop in excess of one year, the statutorily prescribed period. Thus, there arose a presumption of intent to abandon the use of the property as an automobile repair shop. In an effort to rebut the presumption, appellants asserted that the structural condition of the garage prevented King from immediately seeking any tenants. Moreover, appellants noted that King's back injury prevented him from making the necessary repairs to ready the garage for re
Page 1 2 3 Pennsylvania Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|