Sullivan v. Zoning Board of Adjustment

Commonwealth Court of Pennsylvania · 1984 · Property

PropertyZoningNonconforming usesAbandonmentAmortizationnonconforming useabandonmentdiscontinuance

Facts

Sullivan owned property in an R-10A residential district that had long been used as a junkyard and had become a nonconforming use after the city's zoning ordinance was enacted. He sought permission to construct a one-story 10.5-by-13-foot structure to house a trash baler on the lot. The zoning authorities denied relief on the grounds that the junkyard use had been abandoned, that the proposed structure was not a permissible extension of the nonconforming use, and that the junkyard had lost its status under a code provision requiring discontinuance of certain open-air nonconforming industrial uses after five years. The board found three years of discontinuance between 1965 and 1977, but the record also contained testimony that junk was stored, treated, bought, and sold on the property during that period.

Issue

Whether the zoning board erred in concluding that Sullivan's nonconforming junkyard use had been abandoned and that the proposed baler structure was impermissible, and whether the code's amortization provision for certain open-air nonconforming uses was unconstitutional or otherwise invalid as applied to this property. The court also had to determine whether further proceedings were necessary on the reasonableness of applying the amortization provision here.

Rule

A discontinuance provision stating that a nonconforming use discontinued for more than three years shall be considered abandoned creates only a presumption of intent to abandon; that presumption is rebutted by evidence inconsistent with abandonment, because abandonment requires both intent to abandon and actual abandonment. Provisions requiring the amortization and elimination of nonconforming uses are not facially unconstitutional and are valid if reasonable as applied, with reasonableness determined by considering the nature of the present use, the amortization period, the present and foreseeable development of the surrounding area, and whether the public benefit from discontinuance more than offsets the owner's loss. Where an owner seeks to enclose an open-air portion of property that was lawfully used as part of a preexisting nonconforming use, no variance is required if the area enclosed was an integral part of that nonconforming use and the plan complies with dimensional requirements.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Pittsburgh, a parcel in a residential district has long held a lawful nonconforming landscaping-supply yard. The ordinance states that any nonconforming use discontinued for more than two consecutive years is "deemed abandoned." During a claimed three-year lull, owner Dana Mercer stopped regular retail hours but kept mulch, stone, and fencing materials on the lot and occasionally allowed contractors to pick up supplies.

If the city seeks to terminate the nonconforming use based solely on the two-year discontinuance provision, which is the best result?

Explanation. Abandonment requires both intent to abandon and actual abandonment consistent with that intent. A discontinuance provision of this kind creates only a presumption of intent to abandon, not a conclusive rule. Evidence that materials remained stored on the property and were occasionally picked up is inconsistent with an intent to abandon and rebuts the presumption. (Derived from Sullivan v. Zoning Board of Adjustment (n.d.).)