Citation:

Simonitis v. Zoning Hearing Bd. of Swoyersville Borough,
865 A.2d 284 (Pa. Cmwlth. 2005)

Case Details:

Zoning Hearing Board (ZHB) denied prospective buyer’s (Buyer) application to expand a non-conforming automotive repair business (Garage) in an area zoned R-1. The ZHB concluded that the current owner (Owner) had abandoned the Garage for at least one continuous year (the ordinance’s requisite period). The Commonwealth Court reversed, noting that the test for abandonment “is a difficult one [for municipalities] to satisfy.” The Court confirmed that in order to show abandonment of a non-conforming use, the municipality must demonstrate that the landowner both intended to abandon the use, and actually abandoned the use.

The Court’s decision also reaffirmed the burden shifting procedure applicable to abandonment analysis. First, a municipality establishes a rebuttable presumption of abandonment if it can produce evidence that the landowner did not use the property for the requisite period. The burden then shifts to the landowner to produce evidence of a “contrary intent.” If the landowner produces such evidence, the presumption is rebutted. The municipality may still prevail, however, if it can produce enough evidence showing that the Owner actually abandoned the non-conforming use.

In this case, the ZHB established a rebuttable presumption of Owner’s intent to abandon by producing evidence that Owner had boarded up the front door, terminated his last employee, started full-time work more than one-year prior, and had not maintained the facility. Owner’s testimony, however, rebutted the presumption, including 1) that he did not intend to abandon the Garage; 2) that his tools, materials, and office equipment remained in the Garage; 3) that he periodically used the Garage to work on his own as well as others cars; and 4) that he intended to sell the Garage to Buyer to be used as a Garage.

Under the test’s second prong, the Court found that the Owner’s continued, albeit sporadic, commercial use of the Garage disposed of the element of actual abandonment. In reaching this conclusion, the Court distinguished its decision from prior precedent where a municipality successfully extinguished a non-conforming auto repair business that was used sporadically but not for commercial purposes.

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