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FAITH PRESBYTERIAN CHURCH v. BENSALEM TOWNSHIP ZONING HEARING BOARD (02/26/88)

decided: February 26, 1988.

FAITH PRESBYTERIAN CHURCH, AN UNINCORPORATED ASSOCIATION, BY JAMES P. O'BRIEN AND DEREK D. WILLIAMS, TRUSTEES AND DONALD SMITH, OWNER, APPELLANTS
v.
BENSALEM TOWNSHIP ZONING HEARING BOARD, APPELLEE



Appeal from the Order of the Court of Common Pleas of Bucks County, in case of Faith Presbyterian Church, an unincorporated association, by James P. O'Brien and Derek D. Williams, Trustees and Donald Smith, Owner v. Bensalem Township Zoning Hearing Board, No. 85-9073-12-1.

COUNSEL

Mark R. Semisch, with him, Donald A. Semisch, for appellants.

Andrew K. Worek, with him, Richard I. Moore, Moore & Berkowitz, for appellee.

Judges Barry and Colins, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 114 Pa. Commw. Page 108]

Faith Presbyterian Church (appellant) appeals an order of the Court of Common Pleas of Bucks County (trial court) which affirmed a decision of the Bensalem Township Zoning Hearing Board (Board), granting the appellant's request for a variance but denying its application to continue a non-conforming use.

The property in question is located in an area which is presently zoned R-2 in Bensalem Township. The Bensalem Township Zoning Ordinance (Ordinance)*fn1 previously allowed the use of a building in an R-2 district for church purposes. However, in November of 1979, the Ordinance was amended to limit property used in R-2 districts to non-institutional purposes.

A building presently exists on the property that was used as a church by the Trevose Mennonite Church until

[ 114 Pa. Commw. Page 109]

    the early 1980's. The present owner of the property, Mr. Donald Smith, purchased the building in 1980. He thereafter applied for a zoning variance to use the building on the property as an adult school, said application being granted. In conjunction with acquiring this variance, Mr. Smith removed the pews from the building and painted the building. Nevertheless, Mr. Smith never used the property as a school, but in October of 1985, leased the property to the appellant. Appellant now contends that the use of the building as a church was never abandoned and that, therefore, it is entitled to a certification of the continuance of a non-conforming use so that it may use the building located on the property in question as a church.

The sole issue before this Court is whether the Board erred in determining that the non-conforming use of the property was abandoned. Initially, we must note that where, as here, the trial court in reviewing a zoning appeal has taken no evidence beyond that presented to the Board, our scope of review is limited to determining whether the Board committed a manifest abuse of discretion or an error of law. Borough of Malvern v. Jackson, 108 Pa. Commonwealth Ct. 248, 529 A.2d 96 (1987). We may conclude that the Board abused its discretion only if the findings are not supported by substantial evidence. By "substantial evidence" we mean such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 555, 462 A.2d 637, 640 (1983) (citations omitted).

Section 1100.4 of the Ordinance provides:

If a nonconforming use of a building or portion thereof or of land is discontinued for a period of one year, such nonconforming use shall not thereafter be re-established and the future ...


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