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GEORGE MARTORANO ET AL. v. BOARD COMMISSIONERS CHELTENHAM TOWNSHIP ET AL. BOARD COMMISSIONERS CHELTENHAM TOWNSHIP MONTGOMERY COUNTY (05/07/80)

decided: May 7, 1980.

GEORGE MARTORANO ET AL.
v.
THE BOARD OF COMMISSIONERS OF CHELTENHAM TOWNSHIP ET AL. BOARD OF COMMISSIONERS OF CHELTENHAM TOWNSHIP OF MONTGOMERY COUNTY, PENNSYLVANIA, AND MELROSE PARK IMPROVEMENT ASSOCIATION, APPELLANTS



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Appeal of George Martorano, Evelyn Martorano and Melrose Paddock, Inc., i/t/a Continental Dinner Theatre v. The Board of Commissioners of Cheltenham Township of Montgomery County, Pennsylvania, No. 75-5629.

COUNSEL

Edward Greer, Mesirov, Gelman, Jaffe, Cramer & Jamieson, for Melrose Park Improvement Association, appellant.

John F. Christie, III, with him Gilbert P. High, Jr., High, Swartz, Roberts & Seidel, for The Board of Commissioners of Cheltenham Township, appellant.

Lewis Kates, Kates & Livesey, for appellees.

President Judge Crumlish and Judges Craig and Williams, Jr., sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 51 Pa. Commw. Page 203]

This appeal under the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยง 10101 et seq., has been brought by the Melrose Park Improvement Association and

[ 51 Pa. Commw. Page 204]

    the Board of Commissioners of Cheltenham Township (township) from an order of the Court of Common Pleas of Montgomery County which reversed a decision of the township denying the request of appellees, as applicant, for permission to rebuild the Continental Dinner Theatre, a legal nonconforming use which had been destroyed by fire. Although the application seeks only to restore a single building, and no subdivision by title or otherwise has been requested, this appeal involves the township's refusal to grant approval under the Cheltenham Township Subdivision Ordinance of 1974 (subdivision ordinance).

As to the facts and rationale, we adopt the able and concise opinion of Judge Cirillo as to the decision below. It reads:

The plaintiffs are the owners of a property which was being operated as a valid nonconforming use. On January 1, 1974, the property was substantially destroyed by fire. The plaintiffs desired to reconstruct the building in order to reinstitute the former use. The plaintiffs did not seek a building permit because they were informed by the township that they must submit a plan of reconstruction under the Township Subdivision Ordinance. In December 1974, the plaintiffs submitted a plan for reconstruction, which plan was denied by the township. The plaintiffs submitted a second reconstruction plan which was also denied. The plaintiffs appealed both denials to the Court. After argument, the Court sustained the appeals, and directed that the proper building permits be issued. The defendant has appealed that Order to the Commonwealth Court.

The township contends that the plaintiffs abandoned their nonconforming use because they did not begin reconstruction within one

[ 51 Pa. Commw. Page 205]

    year of the fire, as required by the zoning ordinance. Abandonment requires intent to abandon, and the township did not demonstrate any intent on the part of the plaintiffs in this case. As was stated by the Commonwealth Court in Grace Building Co. v. Zoning Board of Adjustment, 392 Atl. 2d 892: 'The ordinance places a time limitation on the right of a landowner to resume a nonconforming use, the intention to surrender the right may be presumed from the expiration of the designated period, but it is still necessary to show concurrent overt acts or failures to act which indicate abandonment.' In this case, the plaintiffs filed a development plan within one year and, therefore, the presumption referred to in the Grace case is not applicable and the burden to prove abandonment or intent to abandon shifted to the municipality. The Court finds that the submission of the plan was a significant step toward reconstruction and, therefore, there was no abandonment. The township further argues that the plaintiffs should have requested a building permit and, when denied, could then have brought a mandamus action. However, to have pursued that route would have only encouraged litigation. Instead, the plaintiffs proceeded under the Subdivision Ordinance because they were advised to do so by the township.

It is clear that the Cheltenham Subdivision Ordinance is not applicable to plaintiffs' proposed reconstruction of its nonconforming use. Subdivision ordinances are to be strictly construed against a municipality: Gulf Oil Corp. v. Warminster Twp., 22 Pa. Comm. Ct. 63. The plaintiffs do not seek ...


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