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Amna Salahuddin v. Zoning Hearing Board of West Chester and Borough of West Chester

November 14, 2012

AMNA SALAHUDDIN, APPELLANT
v.
ZONING HEARING BOARD OF WEST CHESTER AND BOROUGH OF WEST CHESTER



The opinion of the court was delivered by: Rochelle S. Friedman, Senior Judge

Submitted: September 7, 2012

BEFORE: HONORABLE DAN PELLEGRINI, President Judge

HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY SENIOR JUDGE FRIEDMAN

Amna Salahuddin appeals, pro se, from the December 29, 2011, order of the Court of Common Pleas of Chester County (trial court), which denied Salahuddin's appeal and affirmed the decision of the Zoning Hearing Board of West Chester Borough (ZHB). We affirm.

In April 1996, Salahuddin purchased 3,679 square feet of property located at 123 South Walnut Street (Property) in the Borough of West Chester (Borough). The Property is located in the NC-2 Neighborhood Conservation District, Block Class B, pursuant to the Borough of West Chester Zoning Ordinance (Ordinance). The Property is improved with a single-family, semi-detached dwelling. Salahuddin resides on the first floor of that dwelling.

Until 1992, Alonso Duque, the owner at that time, used the first floor of the Property as a single-family dwelling and the second and third floors as a "rooming house." PNC Mortgage Corporation (PNC) acquired the Property in a mortgage foreclosure action in 1992 and, thereafter, the dwelling was no longer used as a "rooming house."

In 1995, Michael Perrone, the Borough's director of building and housing, advised Brian Nelson, a realtor who was marketing the Property as a "multifamily dwelling" on behalf of PNC, that the Property's "multifamily dwelling" use had been "abandoned and the official use of the [P]roperty is a single-family dwelling." (Exhibit B-1.)

On April 1, 1996, Salahuddin purchased the Property and was advised, prior to the purchase, that the dwelling had to be used as a "single-family dwelling" because the "rooming house" use had been abandoned. (N.T., 3/14/11, at 4.) Salahuddin testified that she had "hopes of either converting it or if not allowed, of using it as a single-family [dwelling]." (Id. at 39.) Salahuddin used the dwelling as a "single-family dwelling" since the time she purchased it in 1996, although she did not use the second and third floors. (Id. at 4, 39.)

On January 31, 2011, Salahuddin filed a zoning application with the ZHB requesting a variance to use the dwelling as a "multifamily dwelling." The ZHB held a hearing on March 14, 2011, and, on April 8, 2011, issued a decision denying Salahuddin's request for relief. Salahuddin appealed to the trial court, which denied Salahuddin's appeal and affirmed the decision of the ZHB. Salahuddin now appeals to this court.*fn1

Salahuddin contends that she has a nonconforming use and did not intend to abandon the nonconforming use. We disagree.

Abandonment of a nonconforming use requires: (1) intent to abandon and (2) actual abandonment. Latrobe Speedway v. Zoning Hearing Board, 686 A.2d 888, 890 (Pa. Cmwlth. 1996), aff'd, 553 Pa. 583, 720 A.2d 127 (1998). Intent to abandon will be presumed by a lack of occupancy of the nonconforming use for the prescribed period of time in a municipality with a discontinuation ordinance. Id. However, if evidence of intent contrary to abandonment is introduced, then the presumption is rebutted and the burden of persuasion shifts back to the party claiming abandonment. Id.

Section 112-96.P of the Ordinance reads as follows:

Abandonment of use. Whenever a nonconforming use of land or of a building or other structure or any portion thereof is abandoned or discontinued for a continuous period of one year or more, such abandonment or discontinuance shall be presumed to constitute an intention to abandon or discontinue such use. Any subsequent use of such ...


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