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decided: January 20, 1983.


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.

Author: 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 did abandon the use. See, e.g., Baird v. Slippery Rock Zoning Board, 20 Pa. Commonwealth Ct. 236, 340 A.2d

[ 71 Pa. Commw. Page 283904]

(1975). In an abandonment case, the municipality thus must establish "the existence or non-existence of facts upon which its legal rights depend, and against whom judgment would be given if no evidence were produced on the other side." 2 G. Henry, Pennsylvania Evidence ยง 726 (1953). See Kuhl v. Zoning Hearing Board of Greene Township, 52 Pa. Commonwealth Ct. 249, 251-52, 415 A.2d 954, 956 (1977) (municipality must "show concurrent overt acts or failure to act which indicate abandonment").

Here, however, the property owner has initiated the proceeding by seeking a permit to reconstruct his nonconforming use. The key point is that events here have required the owner to be the moving party, proposing new work with respect to a type of structure not among those permitted in the district involved. Although the owner is admittedly a victim of circumstances in this situation, the perpetuation of nonconforming uses is not favored in the law. See Hanna v. Board of Adjustment, 408 Pa. 306, 183 A.2d 539, 543 (1962), in which our Supreme Court said:

Even though zoning ordinances permit the continuance of nonconforming uses, it is the policy of the law to closely restrict such nonconforming uses and to strictly construe provisions in zoning ordinances which provide for the continuance of nonconforming uses. Nonconforming uses, inconsistent with a basic purpose of zoning, represent conditions which shall be restored to conformity as speedily as is compatible with the law and the Constitution.*fn3

[ 71 Pa. Commw. Page 284]

Accordingly, an ordinance limitation such as the one here, forbidding the restoration of a nonconforming structure which fate has substantially eliminated, is a valid exercise of the police power. AFSO Builders, Inc. v. Upper Darby Zoning Hearing Board, 12 Pa. Commonwealth Ct. 100, 314 A.2d 860 (1974).

Hence, as in the special exception situation, the applicant has the persuasion burden to show that he has met the prescribed conditions. See Bray.

Although Broad Acres had the persuasion burden, the parties, at the hearing before the board, agreed that the municipality would have the duty of first going forward with the evidence. Normally, in a zoning case, the burden of going forward with the evidence falls initially upon the party with the burden of persuasion, see Bray, but the effect of this agreement was inconsequential.

Because the trial court, even with the persuasion burden seen as falling upon the township, found upon the record that the building's damage did exceed 75% of its market value, the limitations of our scope of review constrain us to accept that factual result.

Therefore, after a careful review of the record, we affirm on Judge Gawthrop's opinion, noting only the burden of proof modification discussed above.*fn4

[ 71 Pa. Commw. Page 285]


Now, January 20, 1983, the order of the Court of Common Pleas of Chester County, No. 79 November Term, 1978, dated April 27, 1981, is affirmed.



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