AJK Prop. Invs., LLC v. Borough of Mckees Rocks Planning Comm'n & Zoning Hearing Bd.

Full title: AJK Property Investments, LLC v. Borough of McKees Rocks Planning…

Court: COMMONWEALTH COURT OF PENNSYLVANIA

Date published: Dec 4, 2013

No. 754 C.D. 2013 (Pa. Cmmw. Ct. Dec. 4, 2013)

Opinion

No. 754 C.D. 2013

12-04-2013

AJK Property Investments, LLC v. Borough of McKees Rocks Planning Commission and Zoning Hearing Board Appeal of: Borough of McKees Rocks

MEMORANDUM OPINION BY JUDGE LEADBETTER

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge (P) HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER

The Borough of McKees Rocks (Borough) appeals from the order of the Court of Common Pleas of Allegheny County that reversed the decision of the Borough of McKees Rocks Zoning Hearing Board (Board) denying AJK Property Investments, LLC (AJK) an extension of a prior nonconforming use. We affirm.

In July 2010, AJK purchased a property located at 828 Thompson Avenue in the Borough. The prior owner of the property, the McKees Rocks Lodge 1263 of the Beneficial and Protective Order of Elks (Elks), had operated on the property a private social club for over fifty years. The Elks ceased to use the property as a social club for several years prior to AJK's purchase of the property. The property is zoned R3-Residential and its use as social club existed as a legal nonconforming use.

AJK purchased the property intending to operate a public restaurant and bar featuring live entertainment, on-site and off-site catering and meeting facilities. Records from the Office of County Assessment of Allegheny County listed the property as "commercial" and its use code was "lodge hall/amusement park" while under the ownership of the Elks. Reproduced Record (R.R.) at 64. These designations remained unchanged after the sale of the property to AJK. Id. at 65. In June 2010, AJK applied for an occupancy permit for use of the property as a private club or restaurant/bar. A Borough building inspector inspected the property and provided AJK with a list of improvements required to be completed before the property could be used as indicated on the occupancy permit application. R.R. at 68. AJK also upgraded the electrical service to 400 amps. R.R. at 69.

In April 2012, AJK filed an application for a zoning variance. On May 17, 2012, the Board held a hearing on AJK's request for a variance. Bill Dickerson, a partner in AJK, testified that the company intended to operate a restaurant and bar, provide live entertainment, provide catering both on-site and off-site, and provide meeting facilities. Aaron Karas, another AJK partner, stated that the inspections for the kitchen did not expire until 2011 and AJK updated all the Allegheny County Health Department permits. May 17, 2012 Hearing Notes of Testimony (May 17 N.T.) at 12-13; R.R. at 23-24. Karas also testified that he was paying taxes on a commercial building. May 17 N.T. at 19; R.R. at 30. The Board noted Section 5.700 of Ordinance 1330 provides that a nonconforming use may not be reestablished after it has been discontinued or vacated for a period of 12 months or more unless the Board grants an extension. The Board also noted that the property is zoned R3 and that the grant of a variance is only available where the use is appropriate for the zoned district. The Board recommended that AJK go to the Borough council and request that the property be rezoned as C-2.

The Board held a second hearing on the continuance of the nonconforming use on June 28, 2012. Board member Nicholas Radoycis stated that although it had not acted on AJK's application at the prior meeting, the Board had concluded that it could not grant a continuation of the nonconforming use because the property had not been used for more than a year. June 28, 2012 Hearing Notes of Testimony (June 28 N.T.) 3; R.R. at 88. John Bacharach, the attorney for the Borough, stated that it was the Borough's position that the nonconforming use had been abandoned, the proposed use is inconsistent with the current zoning and AJK's application should not be granted. June 28 N.T. at 8; R.R. at 93a. The Board allowed Borough residents to express their support or opposition to the proposed use of the property as a bar and restaurant on the record.

The Board orally denied the application stating that Section 5.700 provided that a nonconforming use that has been discontinued for more than a year may not be resumed unless the Board has granted an extension. June 28 N.T. at 27-28; R.R. at 112-13. The Board noted that an extension had not been granted. June 28 N.T. at 28; R.R. at 113. The Board concluded that use of the property as a bar and restaurant was not appropriate in a residential zone. June 28 N.T. at 29; R.R. at 114. The Board further concluded that the nonconforming use had been extinguished and could not be reestablished and that a bar is not appropriate to the character of the zoning district. June 28 N.T. at 31; R.R. at 116.

AJK appealed to common pleas, asserting that the Board erred in determining that the use of the property as a social club had been abandoned. AJK argued that it had rebutted the presumption of intent to abandon the nonconforming use and there was no evidence of record demonstrating actual abandonment. AJK also argued that the Board erred in concluding that the use of the property as restaurant and bar was different from its prior use as social club.¹

1 Common pleas concluded that the Board erred in determining that a public bar is a different use than a private social club. This issue is not raised on appeal. --------

Common pleas reversed the Board, finding that the preexisting nonconforming use had not been abandoned. Common pleas noted that the Elks had continued to pay the commercial tax rate on the property and had maintained the Allegheny County Health Department certificates after the club ceased operations. This appeal followed.

The Borough argues that AJK did not provide sufficient competent evidence to rebut the presumption of abandonment. The Borough asserts that the evidence relied upon by common pleas does not support a finding that the nonconforming use was abandoned. Specifically, the Borough contends that the record does not support common pleas' finding that Allegheny County Health Department certificates were maintained after the Elks ceased operation. The Borough maintains that the record supports a conclusion only that AJK obtained health certificates in 2011. Further, the Borough argues that there is no commercial tax rate on the property as a property's tax rate is determined by its assessed value and not on its use.

To prove abandonment of a nonconforming use, the party asserting abandonment must show both (1) an intent to abandon and (2) actual abandonment. Pappas v. Zoning Bd. of Adjustment of the City of Phila., 527 Pa. 149, 153, 589 A.2d 675, 677 (1991). Where a zoning ordinance contains a discontinuance provision, failure to use a property for the specified period of time is evidence of the intention to abandon. Latrobe Speedway v. Zoning Hearing Bd. of Unity Twp., 553 Pa. 583, 592, 720 A.2d 127, 132 (1998). Once the intent to abandon is established pursuant to a discontinuance provision, the burden switches to the party challenging the claim of abandonment. Id. at 592, 720 A.2d at 132. If the challenger introduces evidence of any contrary intent, the presumption is rebutted and the burden of persuasion shifts back to the party claiming abandonment. Id. Actual abandonment must be demonstrated by other evidence, such as overt acts, a failure to act, or statements. Grace Bldg. Co. v. City of Allentown, 392 A.2d 892, 895 (Pa. Cmwlth. 1978). Abandonment is question of fact, which depends upon all the circumstance of the case. Finn v. Zoning Hearing Bd. of Beaver Borough, 869 A.2d 1124, 1127 (Pa. Cmwlth. 2005). Abandonment is proved only when both intent to abandon and implementation of that intent, or actual abandonment are established. Id.

In Latrobe Speedway, the Supreme Court found that a nonconforming use as a racetrack had not been abandoned because (1) the property was assessed as a racetrack and the owner paid yearly property taxes pursuant to that assessment; (2) although the structures on the property were in disrepair, no attempt had been made to dismantle them or otherwise convert the use of the tract; and (3) since racing activity ceased some 14 years prior, the owner continually negotiated for the sale or lease of the premises as a racetrack. Id. 553 Pa. at 592-93, 720 A.2d at 132.

In Grace Building Co., a property was used as a social club, a nonconforming use, for nearly 50 years by the Knights of St. George Home Association. The property was not used as a social club for slightly more than two years following termination of the Knights' lease. The City of Allentown concluded that the nonconforming use had been abandoned because the property had not been used as a social club for more than two years. This court held that the record did not support a finding of intent to abandon because the property owner had listed the property for sale, obtained an agreement of sale that fell through and eventually executed a lease agreement for use of the property as a social club. 392 A.2d at 894-95. This Court also noted that the owner did not make any physical changes in the building that would have altered its basic character as a social cub. Id. at 895.

Section 5.700(b) of the Borough's zoning ordinance, which governs continued use of nonconforming uses, provides:

Any legal nonconforming use may be continued, repaired, maintained and improved except as provided below, subject to the review and approval of the Zoning Hearing Board.

b. Discontinuance - No such use may be reestablished after it has been discontinued or vacated for a period of 12 months or more, unless an extension is granted by the Zoning Hearing Board.

Because Section 5.700(b) of the Borough's zoning ordinance creates a presumption that the Elks had abandoned the nonconforming use by discontinuing use of the property for more than 12 months, the burden was on AJK to come forward with evidence that there was no intent to abandon the nonconforming use.

The Borough argues that common pleas erred in finding that the health department certificates were maintained after the Elks ceased operations. A review of the record demonstrates that the health department certificates were valid when the property was purchased in 2010 and did not expire until 2011, several years after the Elks ceased operations. Specifically, Karas testified "[t]he inspections for the kitchen and all that stuff was [sic] just expired in 2011. They were all updated as - we had the Allegheny Health Department in there and all that." May 17 N.T. at 12-13; R.R. at 23-24. Thus, common pleas' finding regarding maintenance of the health department certificates is supported by evidence of record.

The Borough argues that there is no commercial tax rate on property as found by common pleas and that a property is assessed based on its value not its use. While there may be no "commercial tax rate" as such, the record reflects that the taxing authority classified this property as a commercial property. Whether a property's use is commercial or residential is a factor in an assessment of its value. The record supports common pleas' finding that the property continued to be designated as commercial and that the Borough did not meet its burden to prove intent to abandon the non-residential use of the building.

Even if this court were to find that there was insufficient evidence to rebut the presumption of intent to abandon, the Borough has completely failed to demonstrate that there was actual abandonment of the nonconforming use. "[A]bandonment of a nonconforming use requires both proof of intent to abandon and proof of actual abandonment. A municipal ordinance may create a presumption of intent to abandon through expiration of a designated period set forth in the ordinance, but the municipality must still show actual abandonment." Bruce L. Rothrock Charitable Found. v. Zoning Hearing Bd., 651 A.2d 587, 591 (Pa. Cmwlth. 1994). See also Finn, 869 A.2d 1124 (stating that a zoning ordinance can create 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, but actual abandonment must still be proven).

For the foregoing reasons, we affirm.

/s/_________

BONNIE BRIGANCE LEADBETTER,

Judge ORDER

AND NOW, this 4th day of December, 2013, the order of the Court of Common Pleas of Allegheny County is hereby AFFIRMED.

/s/_________

BONNIE BRIGANCE LEADBETTER,

Judge