Appeal from the Order of the Court of Common Pleas of Chester County in case of Broad Acres Construction, Inc. v. Zoning Hearing Board of North Coventry Township and North Coventry Township, No. 79 November Term, 1978.
Arthur F. Loeben, Jr., with him Richard E. Wells, Wells, Wells, Loeben & Hoffman, for appellant.
Timothy F. Hennessey, for North Coventry Township.
Judges Blatt, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Craig.
[ 71 Pa. Commw. Page 281]
Broad Acres Construction, Inc. appeals an order of the Court of Common Pleas of Chester County which, in affirming the decision of the North Coventry Township Zoning Hearing Board, upheld that township's refusal to issue a building permit to Broad Acres to reconstruct its apartment building, a legal nonconforming use, which had been partially destroyed by fire.
The township denied the permit application under section 803(D) of the township's zoning ordinance, which prohibits the reconstruction of a nonconforming use involuntarily damaged to an extent greater than 75% of its fair market value.*fn1
Because we are affirming the common pleas court's order on the basis of the substantive findings in the
[ 71 Pa. Commw. Page 282]
able opinion of Judge Gawthrop, D. & C.3d (1981), we need to discuss only the burden of proof issue involved in considering ordinance provisions like section 803(D). As Judge Gawthrop observed, this issue is one of first impression before our court.
Where a municipality, by legislation, sets restrictions on the reconstruction of a substantially damaged nonconforming use, it has described, in effect, a conditionally permitted use. That type of ordinance provision resembles a special exception, see Bray v. Zoning Board of Adjustment, 48 Pa. Commonwealth Ct. 523, 410 A.2d 909 (1980), although it also differs in that the determination of whether the conditions have been met is not expressly delegated to the zoning hearing board as prescribed in section 913 of the Pennsylvania Municipalities Planning Code (MPC).*fn2
Despite that difference, however, the requirement that certain conditions exist before a municipality will allow an applicant to proceed with reconstruction of a nonconforming use more closely resembles a special exception than the situation which the common pleas court found to be analogous -- abandonment of a nonconforming use, where a municipality has the burden of persuasion to establish that the property owner ...