Appeal from the Orders of the Court of Common Pleas of Luzerne County in cases of Joseph Sando v. The Zoning Hearing Board of Hazleton and Joseph Thomas and Elizabeth Thomas, his wife, No. 10014 of 1975; and Robert J. Miorelli and Louise Miorelli, his wife, v. The Zoning Hearing Board of Hazleton, Joseph Thomas and Elizabeth Thomas, his wife, and Joseph Sando, No. 10073 of 1975.
Henry A. Giuliani, with him Thomas J. Carlyon, and Falvello, Ustynoski, Giuliani and Bernstein, for appellants.
Martin D. Cohn, with him Lawrence B. Cohn, and Laputka, Bayless, Ecker and Cohn, for appellees.
No appearance for intervenors.
Judges Kramer, Wilkinson, Jr. and Blatt, sitting as a panel of three. Opinion by Judge Blatt.
[ 30 Pa. Commw. Page 331]
Herein consolidated are appeals from two orders of the Court of Common Pleas of Luzerne County which affirmed in part and reversed in part a decision of the Hazleton Zoning Board of Adjustment (Board).
[ 30 Pa. Commw. Page 332]
The Board had granted an occupancy permit for a gas station to be operated as a nonconforming use in an area zoned residential but had denied a permit to sell used cars on a lot adjacent to the station. Cross appeals were filed: the owners of the properties, Joseph and Elizabeth Thomas, and their tenant, Joseph Sando, appealed the denial of the permit for the lot and a group of neighbors*fn1 appealed the granting of the permit for the gas station. The lower court took testimony from witnesses supplied by all concerned parties and ruled that occupancy permits could not be issued for either property because their nonconforming uses as a gas station and a used car lot had been discontinued and abandoned by the present owners for almost seven years prior to the Sando lease. This appeal by the owners and their tenant followed.
In a zoning case where the court below took additional evidence, review by this Court is limited to a determination of whether or not the lower court abused its discretion or committed an error of law. Harrisburg Fore Associates v. Lower Paxton Township, 21 Pa. Commonwealth Ct. 137, 344 A.2d 277 (1975). The appellants argue here that the lower court committed an error of law in denying the permits because the nonconforming uses of the building and the lot had never been abandoned.
The question of abandonment is one of fact which depends upon an examination of all of the various factors present in an individual case, and the burden of proving an abandonment of a nonconforming use is on those who assert the abandonment. Township of Upper Moreland v. Gaunt, 16 Pa. Commonwealth Ct. 334, 328 A.2d 556 (1974). The evidence as found by the lower court is that the properties involved here were acquired by the Thomases in 1968. The prior
[ 30 Pa. Commw. Page 333]
owners had used the building as a gas station and garage, selling gasoline and repairing automobiles and buses, and the lot had been used for parking and the sale of used automobiles. These uses predated the adoption of the zoning ordinance of the City of Hazleton in 1962, which defined the area in which these properties are located as a residential R-3 district,*fn2 limiting the area to residential uses. The gas station and the lot therefore became nonconforming uses in the area. The Thomases remodeled the building in 1968 and, apparently with the knowledge of the Hazleton Zoning authorities,*fn3 rented the greater portion of the building to Urania Engineering (Urania) which utilized the first floor as an assembly shop and a machine shop and used the lot for parking cars belonging to the owners and employees of the company. The building's gas pumps and other service facilities were used by Thomas Kitchens, a company owned by Joseph Thomas, to furnish gas to and occasionally, to service its trucks. Urania left the property ...