proposed day camp and swim club similar to existing use as amusement park
How later courts described this case
- proposed day camp and swim club similar to existing use as amusement park
- pizza restaurant with seating for forty customers was similar to existing use as sandwich shop that had very limited customer seating and sold primarily take-out food
- pizza restaurant with seating for 40 customers similar to existing use as sandwich shop with limited customer seating that sold primarily take-out food
- expansion of a pizza restaurant with seating for 40 customers was similar to existing use as a sandwich shop with limited customer seating and selling mainly take-out food
Written by the judges who cited it.
The opinion
*156 ZAPPALA, Justice,
concurring.
I concur in the result reached by the majority. I write separately to emphasize the distinction between the burden of proof placed upon the party asserting abandonment of a non-conforming use and the burden of persuasion placed upon the party challenging the claim of abandonment when a zoning code provision governing discontinued use has been adopted.
In this case, Philadelphia Code § 14-102(5)(b) provided that a non-conforming use shall be considered abandoned and may not be resumed when discontinued for a period of more than three consecutive years. Without a provision restricting the reestablishment of a use after discontinuance for a designated time, the party asserting abandonment must introduce evidence to establish (1) an intent to abandon the use, and (2) that the use was abandoned. A discontinuance provision, such as § 14-102(5)(b), creates a presumption of the intent to abandon the use by the expiration of the designated time.
Absent any evidence to the contrary, the lapse of the designated time will be sufficient to establish an intent to abandon the use. The majority states that abandonment cannot be established by mere proof of a failure for a time to use the property and that there must be evidence of intention to abandon. (At 677.) The statement is confusing. Failure 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.
What is critical is that the intention to abandon is only one element of the burden of 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. See, Smith v. *157 Board of Zoning Appeals of the City of Scranton, 74 Pa.Cmwlth. 405 , 459 A.2d 1350 (1983).
I am persuaded that the evidence introduced in this case failed to establish abandonment of the use by the Appellant and agree with the majority that the order of the Commonwealth Court be reversed.