Enactment of Zoning Ordinances and Amendments are Legislative Acts : Technical Assistance

Pennsylvania Land Use Law Library

KEY TOPIC: NONCONFORMITIES

Finn v. Zoning Hearing Board of Beaver Borough,
869 A.2d 1124 (Pa. Cmwlth. 2005)

Pursuant to a zoning ordinance revision that allowed for only one sign per commercial site, a borough instructed a property owner to remove a four-foot by four-foot sign from one of two signposts the owner had previously installed. The owner had used the first signpost continuously since the ordinance revision, but the second "occasionally did not display a sign because of the temporary absence of a tenant." The borough issued its violation and order following the end of a two-year period of non-use (when a new tenant had started using the second post again). Arguing that the signpost had not been abandoned, the owner challenged the borough's order. The zoning hearing board and the court of common pleas found against the owner and tenant.

In reversing the lower court, the Commonwealth Court found that although the non-use of the signpost created a presumption of abandonment, the owner rebutted the presumption by showing that he had continuously maintained the signpost, even though from time to time the signpost did not host a sign. Relying on prior Commonwealth Court and Supreme Court decisions, the Commonwealth Court noted that once a party rebuts the presumption of abandonment, the burden of proof then shifts back to the party alleging abandonment to produce "substantial evidence" of actual abandonment. The Commonwealth Court found that the borough had not met the "substantial evidence" burden in this case.

In addition to reaffirming the burden-shifting approach applicable to the abandonment analysis, the Commonwealth Court also reaffirmed several other general rules relevant to the theory of extinguishment by abandonment: 1) a municipality must show both an intent to abandon and actual abandonment; 2) "non-use alone will not satisfy a party's burden to prove abandonment;" 3) an "interval" of non-use between lessees is not abandonment, and 4) a "non-conforming use cannot be limited to precisely the same use as existed when it became nonconforming."

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