Null v. Zoning Board of Adjustment

Philadelphia County Court of Common Pleas

Null v. Zoning Board of Adjustment

10 Pa. D. & C.2d 605, 1956 Pa. Dist. & Cnty. Dec. LEXIS 325

CourtPennsylvania Court of Common Pleas, Philadelphia County

DecidedAugust 3, 1956

Docketno. 1228

StatusPublished

This text of 10 Pa. D. & C.2d 605 (Null v. Zoning Board of Adjustment) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Null v. Zoning Board of Adjustment, 10 Pa. D. & C.2d 605, 1956 Pa. Dist. & Cnty. Dec. LEXIS 325 (Pa. Super. Ct. 1956).

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Opinion

Flood, J.,

Appellant carried on a nonconforming use, manufacturing machine nuts and screw products, upon the premises in question, in a “C” residential district, from before August 10, 1933, until 1942. From then until 1954 he used the premises for storage. He then applied for a permit for a 25 percent extension, intending to resume the earlier use. This was granted by zoning administrator, but on appeal, the zoning board reversed, holding that the earlier use had been abandoned and could not be resumed as a nonconforming use. •

The only provision of the ordinance which refers to a situation such as this is chapter 14-104(5) which [606]*606provides that: “A nonconforming use when discontinued may be resumed as the same nonconforming use and no other.” This so precisely fits, the situation before us that we feel that it must be applied.

The city argues that this long discontinuance is an abandonment, not a discontinuance. No Pennsylvania cases so hold and the holding of Judge Lewis in Bennett v. Zoning Board, C. P. No. 2, Philadelphia County, March term, 1955, no. 624, is to the contrary. Our ordinance could no doubt provide that a discontinuance for a certain period is an abandonment or equivalent to an abandonment. See Elkins-Rydal Co. v. Brigham, 84 D. & C. 136 (1952). But our city council has not seen fit to do so.

We do not hold that discontinuance, together with certain other facts, might not constitute abandonment. Mere passage of time, however, is not enough under the language of the ordinance.

The order of the zoning board of adjustment is reversed and it is directed to issue the zoning permit sought by appellant.

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Flood, J.,

Appellant carried on a nonconforming use, manufacturing machine nuts and screw products, upon the premises in question, in a “C” residential district, from before August 10, 1933, until 1942. From then until 1954 he used the premises for storage. He then applied for a permit for a 25 percent extension, intending to resume the earlier use. This was granted by zoning administrator, but on appeal, the zoning board reversed, holding that the earlier use had been abandoned and could not be resumed as a nonconforming use. •

The only provision of the ordinance which refers to a situation such as this is chapter 14-104(5) which [606]*606provides that: “A nonconforming use when discontinued may be resumed as the same nonconforming use and no other.” This so precisely fits, the situation before us that we feel that it must be applied.

The city argues that this long discontinuance is an abandonment, not a discontinuance. No Pennsylvania cases so hold and the holding of Judge Lewis in Bennett v. Zoning Board, C. P. No. 2, Philadelphia County, March term, 1955, no. 624, is to the contrary. Our ordinance could no doubt provide that a discontinuance for a certain period is an abandonment or equivalent to an abandonment. See Elkins-Rydal Co. v. Brigham, 84 D. & C. 136 (1952). But our city council has not seen fit to do so.

We do not hold that discontinuance, together with certain other facts, might not constitute abandonment. Mere passage of time, however, is not enough under the language of the ordinance.

The order of the zoning board of adjustment is reversed and it is directed to issue the zoning permit sought by appellant.

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10 Pa. D. & C.2d 605, 1956 Pa. Dist. & Cnty. Dec. LEXIS 325, Counsel Stack Legal Research, https://law.counselstack.com/opinion/null-v-zoning-board-of-adjustment-pactcomplphilad-1956.