IN THE COMMONWEALTH COURT OF PENNSYLVANIA 69th Street Retail Mall LP : and 69th Street Office Owner LP, : Appellants : : v. : No. 969 C.D. 2011 : Argued: February 14, 2012 Upper Darby Zoning Hearing Board : and Upper Darby Township : BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN FILED: March 27, 2012 69th Street Retail Mall LP (69th Street Retail) and 69th Street Office Owner LP (69th Street Office Owner) (collectively, Appellants) appeal from the April 25, 2011, order of the Court of Common Pleas of Delaware County (trial court), which affirmed the decision of the Zoning Hearing Board (ZHB) of Upper Darby Township (Township) denying Appellants appeal from an enforcement notice sent by the Township. 1 We reverse. January 15, 2010. The Township issued its enforcement notice to 69th Street Retail on That notice specifically informed 69th Street Retail that its property at 8 South 69th Street in the Township had an abandoned billboard sign in violation of Article X, Section 1006.B.12 of the Upper Darby Township Zoning Code Ordinance (Ordinance), which provides: In cases where a sign (including billboards) 1 The ZHB joined in the Township s brief on October 31, 2011.
has been abandoned for a period of six (6) months, the Director [of Licenses and Inspections (L&I)] shall order the removal of such sign and sign support at the expense of the owner. Appellants thereafter appealed to the ZHB, contending that they had not abandoned the subject sign. 2 The ZHB then held an open meeting at which Nick Veros, Appellants employee in charge of maintenance and construction, testified in support of Appellants position that they had not abandoned the rooftop sign. For its part, the Township presented the testimony of Jeffrey N. Gentile, its Director of L&I, that Appellants had abandoned the billboard sign. After considering the evidence, the ZHB found in relevant part that Conway Stores (Lessee) has at all pertinent times leased the subject billboard from Appellants. In October 2008, a severe storm damaged the billboard, causing the sheathing to dislodge and creating safety concerns. The Township s Department of L&I issued a notice to 69th Street Retail, requiring an engineering report for the billboard and directing that the billboard s damaged portion be removed immediately. Soon thereafter, the billboard s signage portion was removed. In December 2008, Appellants paid for repairs to the frame structure, and, since that time, no sign or sheathing has been on the frame. (ZHB s Findings of Fact, Nos. 4-10.) The ZHB concluded that Appellants held a legal non-conforming use for a sign that exceeded the maximum size of three hundred square feet, as well as the set back [sic] requirement of being at least 35 feet from the right of way. 2 Appellants also sought a variance in the alternative, but that issue is not before us. 2
(ZHB s Conclusions of Law, No. 3.) The ZHB also concluded that [t]he responsibility of continued use is not abolished by the landlord s delegation of rights to its agent the lessee, (ZHB s Conclusions of Law, No. 5), and that [t]he continued use for a legal non-conforming sign has been abandoned. (ZHB s Conclusions of Law, No. 4.) The ZHB thus denied Appellants appeal. Appellants appealed to the trial court. After oral argument, the trial court rejected Appellants claim that they did not abandon the billboard and dismissed their appeal. Appellants appeal to this court followed. On appeal, 3 Appellants argue that the ZHB wrongly determined that Appellants abandoned their billboard sign. Appellants point out that Article X, Section 1004.B.1 of the Ordinance specifically defines abandonment as [t]he relinquishment of property or the cessation of the use of property or of a sign for one hundred eighty (180) days by the owner with the intention neither of sale or [sic] resuming the use of the property or sign. In particular, Appellants assert that: (1) they did nothing to indicate their intention to abandon the sign; and (2) their failure to erect sheathing on the sign s frame from October 2008 (when an act of God severely damaged the sign) to January 2010 (the date of the enforcement notice) does not prove their actual abandonment of the sign. We agree with Appellants. In Finn v. Zoning Hearing Board of Beaver Borough, 869 A.2d 1124 (Pa. Cmwlth. 2005), this court determined that the zoning hearing board erred and 3 In a zoning appeal in which the trial court takes no additional evidence, our scope of review is limited to whether the zoning hearing board committed an error of law or an abuse of discretion. Zitelli v. Zoning Hearing Board of the Borough of Munhall, 850 A.2d 769, 771 n.2 (Pa. Cmwlth. 2004). 3
abused its discretion by concluding that a landlord abandoned the lawful nonconforming use of a second signpost on his property, which he traditionally leased to tenants, because no sign had appeared on that post from August 2000 to August 2002. In reaching our decision, we reasoned that the burden of proving abandonment is on the party asserting it and that abandonment is a factual question, which depends on all of the factors present in the case. Id. at 1127. We also stated: Id. Abandonment is proved only when both essential elements are established: (1) intent to abandon and (2) implementation of the intent, i.e., actual abandonment. This Court stated in Rayel v. Bridgeton Township Zoning Hearing Board, 511 A.2d 933, 935 (Pa. Cmwlth. 1986), that discontinuance of a nonconforming use for a period in excess of that called for in a zoning ordinance creates a presumption of an intent to abandon, and the presumption can carry the burden of proving intent to abandon if no contrary evidence is presented. However, in addition to proving intent, those opposing must prove that the use was actually abandoned. Id. We further explained: The Supreme Court stated in Latrobe Speedway, Inc. v. Zoning Hearing Board of Unity Township, 553 Pa. 583, 720 A.2d 127 (1998), that failure to use for the specified time under a discontinuance provision is evidence of intent to abandon, which shifts the burden to the party contesting the claim of abandonment, but the introduction of evidence of a contrary intent rebuts the presumption and shifts the burden of persuasion back to the party claiming abandonment. Further: What is critical is that the intention to abandon is only one element of the burden of 4
proof on the party asserting abandonment. The second element of the burden of proof is actual abandonment of the use for the prescribed period. This is separate from the element of intent. Id. at 592, 720 A.2d at 132. This Court has stated that non-use alone will not satisfy a party s burden to prove abandonment, i.e., actual abandonment must be demonstrated by other evidence, such as overt acts, a failure to act, or statements. Latrobe Speedway, Inc. v. Zoning Hearing Board of Unity Township, 686 A.2d 888, 890 (Pa. Cmwlth. 1996), aff d, 553 Pa. 583, 720 A.2d 127 (1998). Id. Guided by these principles, it is clear that the non-use of Appellants billboard sign for a period exceeding the Ordinance s discontinuance provisions is not enough, by itself, to establish Appellants abandonment of that sign. 4 Instead, the sign s nonuse for that period merely provided evidence of Appellants intent to abandon the sign, which evidence Appellants countered by presenting evidence of their intent to resume use of the sign once they regain control of it from Lessee. In this regard, Veros testified that there was a dispute between Appellants and Lessee about who should pay for repairs to the sign, (N.T., 4/22/10, at 8), and that, while Lessee has all of the rights to use the billboard sign, (id. at 16, 17), Appellants nonetheless took the repairs into their own hands, (id. at 16). He also testified that Appellants did not intend to do away with the sign, that Lessee has never stopped paying rent for the sign, that Appellants intend to use the sign in the future, 4 We note that Article X, Section 1004.B.1 of the Ordinance incorporates this reasoning by including within the definition of abandonment a level of intent, i.e., relinquishment of a property or cessation of use of a property or of a sign by the owner with the intention neither of sale or [sic] resuming the use of the property or sign. (Emphasis added). 5
and that Appellants intend to use the sign when the lease is up. (Id. at 18.) Veros further stated that the sign is inspected on a monthly basis, (id. at 24), that it is Lessee s responsibility to use the sign under the terms of its lease, (id. at 25), and that Appellants requested a default of Lessee in order to take over the sign, (id.), but nothing had been decided, (id. at 27). In rebuttal, the Township offered Gentile s testimony that Appellants failed to repair the billboard fully. (Id. at 33, 39.) We hold that the Township s evidence in this regard does not prove Appellants actual abandonment of the billboard sign under either the controlling caselaw or the Township s Ordinance. 5 Accordingly, we reverse. ROCHELLE S. FRIEDMAN, Senior Judge 5 The Township s reliance on Marchese v. Norristown Borough Zoning Board of Adjustment, 277 A.2d 176 (Pa. Cmwlth. 1971), does not aid its position. There, an owner and a tenant voluntarily discontinued a legal nonconforming use while the tenant continued to pay rent under a hollow lease. Id. at 184. We held that such an arrangement did not support an indefinite continuation of the nonconforming use. Id. Here, Appellants sign was damaged by an act of God, and the parties have a valid lease under which only Lessee has the right to use the sign, although it has so far chosen not to do so. These facts do not evince Appellants abandonment of the billboard sign. 6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA 69th Street Retail Mall LP : and 69th Street Office Owner LP, : Appellants : : v. : No. 969 C.D. 2011 : Upper Darby Zoning Hearing Board : and Upper Darby Township : O R D E R AND NOW, this 27th day of March, 2012, the Order of the Court of Common Pleas of Delaware County, dated April 25, 2011, is hereby reversed. ROCHELLE S. FRIEDMAN, Senior Judge