Appeal from the Order of the Court of Common Pleas of Luzerne County in the case of Wayne S. Williams, Sr. v. Salem Township and Salem Township Zoning Hearing Board, No. 2123-C of 1984.
John A. Mihalik, for appellant.
E. Charles Coslett, with him, Charles R. Coslett, Coslett & Coslett Law Offices, for appellees.
Judges Craig and MacPhail, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge MacPhail.
[ 92 Pa. Commw. Page 635]
Wayne S. Williams (Appellant) here appeals from an order of the Court of Common Pleas of Luzerne County affirming a decision of the Salem Township Zoning Hearing Board (Board) that the Appellant had abandoned the use of his land as a junkyard, which use was nonconforming, and that he was not entitled to a variance to resume such use. Appellant
[ 92 Pa. Commw. Page 636]
avers that there was insufficient evidence presented to support these findings and that the Board placed undue emphasis on some evidence while capriciously disregarding other evidence. We will affirm the trial court.
Where, as in this case, the trial court received no evidence additional to that received by the Board, our scope of review is restricted to determining whether the Board committed a manifest abuse of discretion or an error of law. Lebovitz v. Zoning Board of Adjustment of Pittsburgh, 87 Pa. Commonwealth Ct. 200, 486 A.2d 1061 (1985); Smith v. Board of Zoning Appeals, City of Scranton, 74 Pa. Commonwealth Ct. 405, 459 A.2d 1350 (1983).
Section 301.4 of the Township's zoning ordinance provides:
In the event that any nonconforming use ceases for a period of one year, such nonconforming use shall not be resumed. Where no enclosed building is involved, discontinuance of a nonconforming use for a period of six months shall constitute abandonment, and any new use must be in conformity with the regulations of the district.
In Smith, Judge Rogers of this Court clearly outlined the relevant law. The burden of proving abandonment is on the party so asserting. In order to prove abandonment, both actual abandonment and an intention to abandon must be shown. The effect of an ordinance such as the one we are considering here is to create a presumption of the owner or occupier's intent to abandon if the use is discontinued for the requisite period of time. If the owner or occupier then produces evidence of intent other than to abandon, and if the fact-finder believes such evidence, then
[ 92 Pa. Commw. Page 637]
the presumption is rebutted and the burden of persuasion returns to those parties protesting the use. In any event, the presumption raised by a discontinuance provision in a zoning ordinance has only to do with the issue of intent. Actual ...