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Zitelli v. ZHB of the Borough of Munhall
850 A.2d 769 (Pa. Cmwlth 2004)
A landowner requested an occupancy permit to allow two families to occupy two rowhouse properties because she claimed that the property was a pre-existing non-conforming use. The ZHB denied her request because it held the non-conforming use had been abandoned. The Court affirmed the ZHB's decision because it held that the non-conforming use had been abandoned when the windows of the building on the properties were boarded up and no one had legally lived in the houses over a continuous three-year period.
The Borough boarded up the properties in 1997 because a previous landowner's delinquent property tax payments. Three years later, a development company purchased the houses and then sold them to the current landowner in 2001 with no improvements to the property. The Court held that the Borough established that there was an intent to abandon the non-conforming use because the zoning ordinance established a presumption of an intent to abandon when the use is discontinued for a period of twelve months or more. The Court further explained that the Borough also established that the use was actually abandoned, the second element necessary to prove abandonment, because no landowner would intend to continue the non-conforming use while a house is boarded up.
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