Loading...
HomeMy WebLinkAbout97-3743, 98-1317 civilSUN COMPANY, INC., : COURT OF COMMON PLEAS OF Appellant · CUMBERLAND COUNTY, PENNA. Vo ° MIDDLESEX TOWNSHIP ZONING : HEARING BOARD, : NO. 97-3743 CIVIL Appellee : CIVIL ACTION- LAW and : BOARD OF SUPERVISORS OF : MIDDLESEX TOWNSHIP, : LAND USE APPEAL Intervenor : BOARD OF SUPERVISORS OF : COURT OF COMMON PLEAS OF MIDDLESEX TOWNSHIP, : CUMBERLAND COUNTY, PENNA. Appellant : V. '. MIDDLESEX TOWNSHIP ZONING : NO. 98-1317 CIVIL HEARING BOARD, : CIVIL ACTION- LAW Appellee : and · SUN COMPANY, INC., : LAND USE APPEAL Intervenor : IN RE: LAND USE APPEALS BEFORE HOFFER, P.J., HESS AND GUIDO, JJ. ORDER AND NOW, this Z. ~ day of January, 2000, the decision of the Middlesex Township Zoning Hearing Board, 1998-1317, is hereby AFFIRMED and its decision sustaining the enforcement notice from the Middlesex Township Zoning Officer, 1997- 3743, is hereby REVERSED. BY THE COURT: A. Hess, J. Stephen D. Tiley, Esquire Attorney for Intervenor to No. 98-1317 and for Appellant to No. 1997-3743 Keith O. Brenneman, Esquire Solicitors for Board of Supervisors of Middlesex Township Edward E. Harker, Esquire Michael R. Rundle, Esquire For Middlesex Township Zoning Hearing Board SUN COMPANY, INC., : COURT OF COMMON PLEAS OF Appellant : CUMBERLAND COUNTY, PENNA. Vo ° MIDDLESEX TOWNSHIP ZONING : HEARING BOARD, : NO. 97-3743 CIVIL Appellee : CIVIL ACTION- LAW and · BOARD OF SUPERVISORS OF : MIDDLESEX TOWNSHIP, : LAND USE APPEAL Intervenor : BOARD OF SUPERVISORS OF : COURT OF COMMON PLEAS OF MIDDLESEX TOWNSHIP, : CUMBERLAND COUNTY, PENNA. Appellant : V. MIDDLESEX TOWNSHIP ZONING : NO. 98-1317 CIVIL HEARING BOARD, : CIVIL ACTION- LAW Appellee : and : SUN COMPANY, INC., : LAND USE APPEAL Intervenor : IN RE: LAND USE APPEALS BEFORE HOFFER, P.J., HESS AND GUIDO, JJ. OPINION AND ORDER These appeals arise from two decisions of the Middlesex Township Zoning Hearing Board with respect to signs existing on one property which adjoins U.S. Route 11 in Middlesex Township, Cumberland County. The first action, 1997-3743, is the result of an enforcement notice dated February, 27, 1997 from the Middlesex Township Zoning Officer directing the owner and lessee of the property to remove all Gulf advertising signs from the premises. The assignee of the lessee, Sun Company, appealed the enforcement notice to the Middlesex Township Zoning Hearing Board. The Zoning Hearing Board held a hearing on May 14, 1997 and rendered a written decision on June 18, 1997 sustaining the enforcement notice of the 97-3743 CIVIL 98-1317 CIVIL Zoning Officer. On July 10, 1997, Sun Company filed a Notice of Land Use Appeal to No. 1997-3743. The second action, 1998-1317, is the result of a sign permit application filed by Sun Company for a number of signs, including a replacement of the Gulf high-rise sign face with a Sunoco sign face. The portion of Sun Company's sign permit' application relating to the high-rise sign was denied by the Zoning Officer and Sun Company filed a timely appeal for a hearing before the Middlesex Township Zoning Hearing Board. The Board held a hearing on September 19, 1997 and, in addition, the transcripts, proceedings, exhibits and enforcement notice from the first proceeding were incorporated into this second proceeding. On February 11, 1998, the Zoning Hearing Board issued a written decision granting the appeal of Sun Company and allowing the high-rise SUnoco sign, thus reversing the determination of the Zoning Officer. On March 11, 1998, Middlesex Township appealed the Zoning Hearing Board's decision by filing a Notice of Land Use Appeal to No. 1998-1317. Sun Company filed a Notice of Intervention on March 18, 1998, in the second proceeding. The property at issue is a former Gulf service station situated at 1156 Harrisburg Pike, in Middlesex Township, Cumberland County, Pennsylvania. The property is just east of the intersection of U.S. Route 11 and the Pennsylvania Turnpike. The property consists of land, a service station building, gas pumps and a canopy. The property also has a number of signs, including a high-rise advertising sign, which is the sole subject of these proceedings. The Township and the Applicant have stipulated that the high-rise 97-3743 CIVIL 98-1317 CIVIL sign is a preexisting nonconforming sign.l The property has been closed for business as a .Gulf service station since October 13, 1994. Throughout the period of time from the closing of the Gulf business until the hearings before the Board, the high-rise sign, and all other signs on the property, and all of the structures and improvements on the property,~ remained unchanged or modified, except the fuel pumps were removed, as required by federal law. Indeed the Board found: '2qo actual removal, physical alteration or damage to the sign structure has taken place since its installation2' (Findings of Fact 12, second proceeding.) Throughout the time from the closing of the Gulf business until the hearings before the Board, all lease payments to the owner continued to be paid. Before the enforcement notice from the Zoning Officer, a'Tor rent' sign existed at the property. Shortly before the enforcement notice, the property was .sublet to Sun Company, Inc. (Board Findings of Fact 6 and 8, first proceeding.) As the Board found in the second proceeding: During the period of vacancy the property owner maintained a"for leasd' sign on the premises. It is evident from the eventual lease of the property to the Applicant that efforts to re-lease the business were ongoing during said period. (Finding of Fact 13, second proceeding.) Throughout this period the lessee continued to market the property for use, first as a Gulf service station, and then for any permitted use. ~ At the oral argument in this case, an issue was raised concerning the dimensions of the new proposed sign. According to the Board's findings, the existing "Gulf" sign is round and approximately 208 square feet. The proposed Sunoco sign is rectangular and approximately 198 square feet. In its brief, the Township makes only a terse reference to its contention that a change in the dimensions of the sign "result in increasing the non-conformity without appropriate consideration." Given that the overall size of the sign is actually decreased, we fail to see any merit in the Township's contention. 97-3743 CIVIL 98-1317 CIVIL The scope of this Couffs review of a zoning hearing board's decision is well established. When the reviewing court receives no additional evidence or testimony, its duty is to determine whether the board abused its discretion or committed an error of law. Valley View Civic Association v. Zoning Board of Adiustment, 501 Pa. 550, 462 A.2d 637, (1983); Rushford v. Zoning Hearing Board of Adjustment of Pittsburgh, 81 Pa. Cmwlth. 274, 473 A.2d 719, (1984). The Middlesex Township Ordinance Section 14.16(D)(1)(a) pertaining to abandonment of signs states: (a) sign which has remained without bonafide advertising for a period of six (6) months, and for which the sign owner has not made application for a current permit as provided herein below, or which is without a current lease or license from the landowner, or as to which the sign owner has ceased to attempt to lease the advertising space; (emphasis added) The township alleges abandonment of the signs based on the fact that the business advertised by the signs was closed for a period of time from October 13, 1994 until the February 27, 1997 enforcement notice. 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. If the owner or occupier then produces credible evidence of intent not to abandon, then the presumption is rebutted and the burden of persuasion returns to those parties protesting the use. Williams v. Salem Township, 92 Pa. Cmwlth. 634, 636, 500 A.2d 933, 935 (1985). The question of abandonment of a nonconforming use is one of fact which depends upon examination of all the various factors present in an individual case. Miorelli v. Zoning Board of Hazelton, 30 Pa. Cmwlth. 330, 373 A.2d 1158 (1977). 97-3743 CIVIL 98-1317 CIVIL The Township attempts to rely on the mere passage of time to show an intent to abandon. The Middlesex Township Ordinance, however, is not simply a time-based test. There must be a six-month period of a lack of"oonafide advertising' coupled with one of three other conditions. None of these other conditions are met in this case. The ordinance provides for abandonment where the sign owner has not made application for a current permit. Sun Company, Inc. made an application on July 24, 1997, for a permit to erect a rectangular sign located on the existing ground pole structure. Abandonment may also be found where there is no current lease or license from the landowner. A current lease is, however, in place with the landowner and all lease payments have been made. Finally, abandonment may be found where the sign owner has ceased to attempt to lease the advertising space. Cumberland Farms, the lessee, first attempted to find a new operator for the Gulf station, with the existing sign face, and then attempted (and did) sub-lease the premises to another business, Sun Company, which intended to use the sign with its own advertising message. We find the Latrobe Speedway v. Zoning Hearing Board of Unity Township case helpful in the disposition of the matter sub judice. In the Latrobe case, an automobile racetrack had been operated on a tract of land and then closed in 1982. The business remained closed for twelve (12) years, during which time the Township adopted a zoning ordinance prohibiting the use. The property was then leased to Latrobe which desired to again operate the racetrack. As the Commonwealth Court described: Racing activity ended on the premises in 1982, and the property has not been actively used since that date. The physical components of the racetrack remain on the premises, however. These components include the track, grandstands, buildings, fence, and light stands, although these 97-3743 CIVIL 98-1317 CIVIL structures have suffered the wear of years. The premises have become overgrown with weeds, and no improvements have been made to the facility since 1982. Latrobe Speedway v. Zoning Hearing Board of Unity Township,~Pa. Cmwlth.~, at ~, 686 A.2d 888, 889 (1996). In Latrobe, the owner continued to pay taxes on the property which was assessed as a racetrack, the owner negotiated with 23 people for the sale or lease of the premises as a racetrack, and although the structures on the property were in a state of disrepair, no attempt had been made to dismantle them or otherwise convert the use. These facts were sufficient for the Commonwealth Court to hold that the owner/lessee had rebutted any presumption of abandonment. Indeed, the Commonwealth Court stated: [N]on-use alone will not satisfy a party's burden to prove abandonment. Actual abandonment must be demonstrated by other evidence, such as overt acts, a failure to act, or statements. Where non- use occurs because of events beyond the ownex's or occupiers control, such as financial difficulties, there is no actual abandonment. A temporary discontinuance of use is not abandonment nor is a lapse of time between the departure of one lessee and the arrival of another. "A finding of abandonment requires proof of an intent to relinquish the use voluntarily?' Pa. Cmwlth. Id. ~Pa. Cmwlth. at ~, 686 A.2d 888, 890. (citations ommitted.) In view of the evidence adduced from the record presented in this case, the Middlesex Township Zoning Hearing Board did not commit an error of law or abuse its discretion in finding both 1) that the signs and ground pole sign structure were not abandoned and 2) that the decision of the Zoning Officer to deny the sign permit application of Sun Company, Inc. should be reversed. The decision of the Middlesex Township Zoning Hearing Board is hereby affirmed. 97-3743 CIVIL 98-1317 CIVIL ORDER AND NOW, this ~:'1' day of January, 2000, the decision of the Middlesex Township Zoning Hearing Board, 1998-1317, is hereby AFFIRMED and its decision sustaining the enforcement notice from the Middlesex Township Zoning Officer, 1997- 3743, is hereby REVERSED. BY THE COURT: Stephen D. Tiley, Esquire Attorney for Intervenor to No. 98-1317 And Appellant to No. 1997-3743 Keith O. Brenneman, Esquire Solicitors for Board of Supervisors of Middlesex Township Edward W. Harker, Esquire Michael R. Rundle, esquire For Middlesex Township Zoning Hearing Board