Appeal from the Order of the Court of Common Pleas of Lackawanna County in the case of Elmer Smith v. Board of Zoning Appeals of the City of Scranton, No. 82 Civil 0140.
David Schachter, Strohl and Dattola, for appellant.
Robert T. Gownley, for intervenor.
Edmund J. Scacchitti, City Solicitor, with him, Albert B. Mackarey, Assistant City Solicitor, for appellee.
Judges Rogers, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Rogers.
[ 74 Pa. Commw. Page 406]
Reverend Elmer Smith here appeals from an Order of the Court of Common Pleas of Lackawanna County affirming a decision of the Board of Zoning Appeals of the City of Scranton that the appellant could not lawfully continue the use of his property located at number 800-802 Adams Avenue, Scranton, as a grocery store.*fn1 It is undisputed that previous to Reverend Smith's ownership of the property, it was continuously used by others as a grocery store enterprise for some twenty years, including a period of time before the enactment of any zoning regulations, and that, unless the appellant has abandoned the use, he is constitutionally entitled, under the doctrine of pre-existing nonconforming uses, to continue to use the property as a grocery store although only residential uses are now permitted by zoning regulation. Thus, the only issue is that of abandonment.*fn2 The board and the trial court
[ 74 Pa. Commw. Page 407]
found that the appellant had abandoned the grocery store use and the appellant contends that this finding is not supported by the evidence. Our scope of review, where as in this case no additional evidence was received by the trial court, is to determine whether the board committed an abuse of discretion or an error of law. Rieder Appeal, 410 Pa. 420, 188 A.2d 756 (1963).
Section 5.400 of the City's zoning code treats nonconforming uses and provides, at § 5.403:
Discontinuance. No such use may be re-established after it has been discontinued or vacated for a period of 18 months or more.
The burden of proving the fact of abandonment is on the party so asserting; here the appellee, a neighbor who intervened below. Township of Upper Moreland v. Gaunt, 16 Pa. Commonwealth Ct. 334, 328 A.2d 556 (1974). In the absence of a provision like that of § 5.403 of the city's zoning code prohibiting reestablishment of a use discontinued for a stated period, one seeking to establish that the use has been abandoned must prove that the owner or occupier of the land intended to abandon the use and that the use was, consonant with this intention, actually abandoned. While non-use or discontinuance of the use might be probative with respect to the second issue -- actual abandonment -- the intent to abandon could not be inferred from or established by a period of non-use alone. Upper Darby Township Appeal, 391 Pa. 347, 138 A.2d 99 (1958); Haller Baking Company's Appeal, 295 Pa. 257, 145 A. 77 (1928); Corr v. ...