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TKO Realty, LLC v. Zoning Hearing Board of City of Scranton

Commonwealth Court of Pennsylvania

October 18, 2013

TKO Realty, LLC, Appellant
v.
Zoning Hearing Board of the City of Scranton

Argued: September 12, 2013

BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ANNE E. COVEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION

ROCHELLE S. FRIEDMAN, Senior Judge

TKO Realty, LLC (TKO) appeals from the September 26, 2012, order of the Court of Common Pleas of Lackawanna County (trial court) affirming the decision of the Zoning Hearing Board of the City of Scranton (ZHB) denying TKO a building permit to rehabilitate a structure into a three-unit dwelling. We reverse.

TKO owns property at 721-723 Columbia Street in the City of Scranton (City). The property is zoned R1-A and permits single-family or twin semi-detached homes. The property was condemned on October 6, 2008, and purchased by TKO on May 28, 2009.

Shortly after purchasing the property, TKO applied for a permit to use the structure as a five-unit dwelling. The City zoning officer denied the application on the basis that a five-unit dwelling did not comply with the 1993 Zoning Ordinance (1993 Ordinance) and that the prior owner's use of the building as a five-unit structure had been abandoned for at least six months.

TKO appealed to the ZHB challenging the zoning officer's determination and alternatively seeking a variance to use the property as a four-unit dwelling. The ZHB denied the appeal and variance, concluding that "there was no legal [five-unit] nonconforming use which had not been abandoned." (ZHB Decision, 12/9/09, at ¶ 22.) The ZHB stated that TKO failed "to show that there were ever more than three (3) legal nonconforming units . . . ." (Id.) TKO appealed to the trial court, which affirmed. TKO appealed to this court.

In TKO Realty, LLC v. Zoning Hearing Board of the City of Scranton, (Pa. Cmwlth., No. 2225 C.D. 2010, filed July 1, 2011), this court observed that TKO did not produce evidence showing the use of the property as a lawful five-unit dwelling before enactment of the prohibitory zoning restriction. Id., slip op. at 3-4. "Therefore, substantial evidence was not presented to prove that the non-conforming use as a 5-unit building was lawfully created." Id., slip op. at 4.

Thereafter, in August 2011, TKO reapplied for a building permit seeking to rehabilitate the structure into a three-unit dwelling and to register the structure as a three-unit dwelling under the City Rental Registration Ordinance. The City zoning officer refused the request, and TKO appealed to the ZHB.

At the hearing before the ZHB, TKO presented evidence that under the 1924 Zoning Ordinance, the property was zoned "A, " in which apartments were a legal, conforming use. TKO also presented an assessment card from the Lackawanna County Assessor's Office, dating back to 1960, which showed the property assessed as three units. The 1965 Zoning Ordinance (1965 Ordinance) reclassified the district as R1-A, making apartment buildings a nonconforming use.

The ZHB issued a decision concluding that "[a]s to the issue of the three (3) unit use being a legal nonconforming use and on the issue of abandonment, the [ZHB] . . . den[ied] the appeal . . . finding that the multi-use had been abandoned and that it was vacant and condemned for more than six (6) months." (ZHB's Decision, 1/11/12, at ¶ 17.) On appeal, the trial court affirmed. This appeal followed.[1]

We agree with TKO that it established a pre-existing nonconforming use under the 1965 Ordinance and subsequent Ordinances and that the nonconforming three-unit dwelling has not been abandoned.

The burden is on a property owner to establish the existence of a prior nonconforming use. Bevans v. Township of Hilltown, 457 A.2d 977, 981 (Pa. Cmwlth. 1983). "A pre-existing nonconforming use arises when a lawful existing use is subsequently barred by a change in the zoning ordinance." Hager v. West Rockhill Township Zoning Hearing Board, 795 A.2d 1104, 1110 (Pa. Cmwlth. 2002).

TKO maintains that it presented evidence showing that the property was listed on the 1918 City Atlas as a multi-unit structure. The 1924 City zoning map placed the property in the "A" district, which permitted apartments. An assessment card from the Lackawanna County Assessor's Office in 1960 shows the property was assessed as a "three family" dwelling. The 1965 Ordinance reclassified the zoning district, and apartments became a legal non-conforming use. Evidence also showed that the City collected garbage fees on five units, the property has five electric meters and telephone lines, and also has three gas meters. Moreover, the property has ...


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