Salisbury House of Northeast PA Inc. v. City of Allentown Zoning Hearing Board

43 Pa. D. & C.4th 459, 1999 Pa. Dist. & Cnty. Dec. LEXIS 108
CourtPennsylvania Court of Common Pleas, Lehigh County
DecidedOctober 25, 1999
Docketno. 1998-C-2890
StatusPublished

This text of 43 Pa. D. & C.4th 459 (Salisbury House of Northeast PA Inc. v. City of Allentown Zoning Hearing Board) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lehigh County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Salisbury House of Northeast PA Inc. v. City of Allentown Zoning Hearing Board, 43 Pa. D. & C.4th 459, 1999 Pa. Dist. & Cnty. Dec. LEXIS 108 (Pa. Super. Ct. 1999).

Opinion

REIBMAN, J.,

Before the court is the Salisbury House of Northeast Pennsylvania Inc., appellant’s, appeal from the City of Allentown Zoning Hearing Board’s November 11, 1998 decision wherein the board denied appellant’s request to operate a “personal care boarding home.”

The within appeal concerns a three-story structure located at 513-519 Lehigh Street Allentown, Lehigh County. The property is commonly referred to as the Acom Hotel, which has been used as a rooming house and hotel since the 1800s. At some point following its inception, the property was zoned 1-3 or general industrial pursuant to section 1337 of the codified ordinances of the City of Allentown. The operation of a hotel, restaurant, bar or boarding house is not a permitted use in a general industrial zone. See ordinance at section 1337. However, because the Acom Hotel was in operation prior to the adoption of the zoning code, the Acom Hotel was permitted to operate as a nonconforming use.1

The first floor of the Acom Hotel contains a bar area, dining room and kitchen area; the second and third floors contain 22 rooming units. Appellant purchased the property in June 1998, with the intent to convert it into what [461]*461appellant classifies as a “personal care boarding home.” In an effort to modify the Acorn Hotel into a personal care boarding home, appellant proposed to convert the existing 22 rooming units into 12 rooming units and to add two handicap accessible bedrooms on the first floor. In addition, appellant proposed to enclose the existing second floor open porch and to subdivide the lot into two parcels.

Appellant’s proposals were verbally denied by the City of Allentown Planning Department and Zoning Office. Thereafter, appellant filed an appeal before the board. A public hearing was held on October 5,1998. At its meeting on October 19, 1998, the board denied appellant’s request to convert the property into a personal care boarding home and granted appellant’s subdivision request. The board issued a written decision on November 11, 1998. From that decision, appellant filed the within appeal.

Where, as here, no additional evidence was presented subsequent to the board’s decision, the court is limited to determining whether the board committed a manifest abuse of discretion or an error of law. East Torresdale Civic Association v. Zoning Board of Adjustment, 536 Pa. 322, 325, 639 A.2d 446, 448 (1994). An abuse of discretion can be found only if the board’s findings are not supported by substantial evidence. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 555, 462 A.2d 637, 640 (1983). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Bailey v. Upper Southhampton Township, 690 A.2d 1324, 1325 n.1 (Pa. Commw. 1997). An error of law is committed if the [462]*462board erroneously interpreted or misapplied the law to the facts of the case. Highland Park Community Club of Pittsburgh v. Zoning Board of Adjustment, 82 Pa. Commw. 380, 475 A.2d 925 (1984), aff’d, 509 Pa. 605, 506 A.2d 887 (1986).

It is undisputed that appellant’s proposed use is not a permitted use in a general industrial area. Consequently, to prevail, appellant must establish that (1) the prior owners of the property never abandoned the prior nonconforming use of the property as a restaurant/hotel/ boarding house; and (2) the proposed use must be a continuation of the prior nonconforming use. See Latrobe Speedway Inc. v. Zoning Hearing Board of Unity Township, 553 Pa. 583, 720 A.2d 127 (1998); Limley v. Zoning Hearing Board of Port Vue Borough, 533 Pa. 340, 625 A.2d 54 (1993). In the case at bar, the board found the prior nonconforming use had been abandoned and the proposed use was not a continuation of the prior nonconforming use.

Turning first to the issue of whether the prior nonconforming use was abandoned, the Pennsylvania Supreme Court in Latrobe, supra, set forth the following test for determining whether a prior nonconforming use has been abandoned and who has the burden of proof: “[fjailure to use the property for a designated time provided under a discontinuance provision is evidence of the intention to abandon. The burden of persuasion then rests with the party challenging the claim of abandonment. If evidence of a contrary intent is introduced, the presumption is rebutted and the burden of persuasion shifts back to the party claiming abandonment.” Latrobe, 553 Pa. at 592, 720 A.2d at 132.

[463]*463Here, the ordinance contains a discontinuance provision which specifically provides that failure to use the property for a continuous 24-month period equates to a discontinuance of the nonconforming use and the property shall not be occupied except by a use which conforms to the applicable zoning regulations. See ordinance at section 1359.03(5). Upon review of the record, however, there is no evidence to indicate the prior owners of the property failed to use the property as either a restaurant or boarding house for a “continuous” 24-month period as is required under the ordinance. The record indicates only that there was a lapse in the use of the property for up to six months due to problems with cleaning damage from vandalism and removing various underground tanks. N.T., October 5, 1998 at pp. 33-38.

Even assuming, arguendo, the board established a 24-month lapse under the ordinance, appellant established a contrary intention and thus rebutted the presumption. During the hearing, George Atiyeh testified he leased the property prior to appellant purchasing the property, and that despite the short time periods where he had to clean the vandalism and remove the various underground tanks, he had no intention of abandoning the use of the property as a restaurant and boarding home. N.T., October 5,1998 at p. 34.

In response, the board contends Atiyeh’s testimony is insufficient to establish a contrary intent because appellant failed to introduce tax returns or receipts of an ongoing enterprise which would support a contrary intention. Appellant does not fail to prove a contrary intention simply because it neglected to produce such returns or receipts. These items are not mandatory and are merely [464]*464considerations to support evidence of a contrary intent. Latrobe, 553 Pa. at 592, 720 A.2d at 132. Moreover, there is no evidence to imply that Atiyeh was not telling the truth or that he had any pecuniary or other interest in the within appeal. Consequently, under Latrobe, the burden then shifted back to the board to establish abandonment. However, the record is devoid of any testimony or evidence introduced by the board to support a finding of abandonment.

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Related

Borough of Milton v. Densberger
719 A.2d 829 (Commonwealth Court of Pennsylvania, 1998)
Limley v. Zoning Hearing Board
625 A.2d 54 (Supreme Court of Pennsylvania, 1993)
Johnston v. Upper MacUngie Township
638 A.2d 408 (Commonwealth Court of Pennsylvania, 1994)
Highland Park Community v. Zoning Board of Adjustment
506 A.2d 887 (Supreme Court of Pennsylvania, 1986)
East Torresdale Civic Ass'n v. Zoning Board of Adjustment
639 A.2d 446 (Supreme Court of Pennsylvania, 1994)
Latrobe Speedway, Inc. v. Zoning Hearing Board of Unity Township
720 A.2d 127 (Supreme Court of Pennsylvania, 1998)
Valley View Civic Ass'n v. Zoning Board of Adjustment
462 A.2d 637 (Supreme Court of Pennsylvania, 1983)
Tirotta v. Zoning Hearing Board
532 A.2d 937 (Commonwealth Court of Pennsylvania, 1987)
Bailey v. Upper Southampton Township
690 A.2d 1324 (Commonwealth Court of Pennsylvania, 1997)
Highland Park Community Club v. Zoning Board of Adjustment
475 A.2d 925 (Commonwealth Court of Pennsylvania, 1984)

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43 Pa. D. & C.4th 459, 1999 Pa. Dist. & Cnty. Dec. LEXIS 108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/salisbury-house-of-northeast-pa-inc-v-city-of-allentown-zoning-hearing-pactcompllehigh-1999.