Posted by: Patricia Salkin | January 22, 2020

PA Appeals Court Finds Property’s Non-Use as a Picnic Grove for More Than 12 Months Gave Rise to a Rebuttable Presumption of an Intent to Abandon

This post was authored by Matthew Loeser, Esq.

PAJ Ventures, L.P. filed a zoning permit application proposing a “picnic grove” on its property, located in the Rural Agricultural Zone, as a continuation of a prior nonconforming use. The Moore Township Zoning Officer denied Landowner’s application on the grounds that the nonconforming use of the property as a picnic grove had been abandoned and that a picnic grove was not a permitted use in the RA Zone. the Board concluded that Landowner’s prior lawful nonconforming use of its property as a picnic grove had been abandoned, and the Court of Common Pleas of Northampton County affirmed.

On appeal, the Landowner first contended the Township failed to meet its burden of demonstrating abandonment of the nonconforming use on the property. Specifically, Landowner argued that the Timmers, who purchased the property in 1970 and used it as a picnic grove, known as “Timmer’s Grove,” until approximately 2013, were dealing with advanced age and poor health and that Joe Timmer told the Zoning Officer that poor health was his reason for failing to maintain the property. The Board found that this evidence was not supported by testimony of physicians, close friends, or family members and that Mickey Thompson, who testified as to Joe Timmer’s health, did not provide evidence of when Joe Timmer was first afflicted by dementia. Accordingly, the Board claimed that, as the arbiter of credibility, it acted within its discretion in not crediting Landowner’s testimony that the non-use of the Property stemmed from Joe Timmer’s health issues rather than an intent to abandon. Here, the court found that pursuant to section 200-33F of the Zoning Ordinance, the property’s non-use as a picnic grove for more than 12 months gave rise to a rebuttable presumption of an intent to abandon. Since the Township met its burden in demonstrating abandonment, the court affirmed the trial court’s decision on that issue.

Landowner next argued that under section 200-33E of the Zoning Ordinance, a new owner of a property may continue a lawful nonconforming use as long as it reregistered the nonconforming use within 60 days of final settlement. While Landowner conceded that it did not reregister the nonconforming use of the property after it was purchased, Landowner still contended that under Pennsylvania law a zoning hearing board is prohibited from finding abandonment based solely on a purchaser’s failure to reregister a nonconforming use. However, since the Township did not appeal the Board’s decision, the issue regarding Landowner’s compliance with section 200-33E was found to be moot.

PAJ Ventures, LP v. Zoning Hearing Board of Moore Township, 2020 WL 355362 (PA Cmlwth 1/22/2020)

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