In the recent Pennsylvania Commonwealth Court decision of TKO Realty, LLC v. Zoning Hearing Board of the City of Scranton, 78 A.3d 732, the court addresses whether the use of a property as a multi-unit dwelling was a lawful non-conforming use and whether such use was abandoned based upon a period of discontinuance. 

In this case, shortly after purchasing a property, TKO Realty, LLC (TKO) applied for a permit from the City of Scranton (the City) to use the building 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 existing Zoning Ordinance (the 1993 Ordinance).  Further, the zoning officer asserted that the prior owner's use of the building as a five-unit dwelling had been abandoned. 

TKO appealed the zoning officer's determination to the Zoning Hearing Board (the ZHB) and, in the alternative, applied for 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] non-conforming use which had not been abandoned."  TKO appealed to the trial court, which affirmed.  Specifically, the trial court found that TKO did not prove that the property was used as a lawful five-unit dwelling before the enactment of the 1993 Ordinance, which prohibits such use.  Therefore, the non-conforming use as a five–unit building was not lawfully established. 

Following the trial court ruling, TKO applied for a building permit to rehabilitate the building into a three-unit dwelling and to register the structure as a three-unit dwelling under the City Rental Registration Ordinance.  In support of its application, TKO presented an assessment card from the Lackawanna County Assessor's Office, dating back to 1960, which showed the property was assessed as three units. In 1965, the new Zoning Ordinance (the 1965 Ordinance) rendered the apartment building as a non-conforming use.  The ZHB found that the legal non-confirming use of the property had been abandoned by the previous property owner, as the building was vacant and condemned for more than six months.  On appeal, the trial court affirmed.  TKO appealed. 

Commonwealth Court Decision

The Commonwealth Court found that the building qualified as a legal non-conforming use.  In non-conforming use cases, the burden is on a property owner to establish the existence of a prior non-conforming use.  At the hearing, TKO 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 showed the property was assessed as a "three family" dwelling. Thereafter, as a result of the 1965 Ordinance, the building became a legal non-conforming use. Evidence also showed that the City collected garbage fees on five units, the property had five electric meters and telephone lines, and also had three gas meters. Moreover, the property has been assessed and taxed as a three-unit dwelling since at least 1960 and continued to be assessed and taxed as a three-unit dwelling to the date of the hearing.  The court was not persuaded by the City's argument that TKO and its predecessors did not register the units under the Rental Registration Ordinance and did not seek a written statement of non-conformity from the zoning officer. 

The Court also found that that the non-conforming use was not abandoned.  In Pennsylvania, the right to continue a non-conforming use invokes certain constitutional protections.  Specifically, continuation of a legal non-conforming use runs with the land, until abandoned.  The party asserting abandonment has the burden to prove both that the landowner intended to abandon the use and that the use was actually abandoned. Zitelli v. Zoning Hearing Board of the Borough of Munhall, 850 A.2d 769, 771 (Pa.Cmwlth.2004). 

Although the property was vacant from at least October 6, 2008, when it was condemned, until TKO purchased the property on May 28, 2009, the City failed to show actual abandonment. 

The court found that, where discontinuance of a use occurs because of events beyond the owner's control, such as financial inability, there is no actual abandonment. Metzger v. Bensalem Township Zoning Hearing Board, 165 Pa.Cmwlth. 351, 645 A.2d 369, 371 (1994).  Moreover, failure to register a non-conforming use does not constitute an abandonment of that use. Appeal of Suburban General Hospital, 48 Pa.Cmwlth. 273, 410 A.2d 85, 87–88 (1980). 

As TKO established a legal three-unit non-conforming use, which was not actually abandoned by the prior owner, the Court reversed the order of the trial court. 

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