*1 Inc.’s Zoning Co., Appeal. before February President Argued Judges Crumlish, Jr., Kramer, Bowman Wilkin- Rogers. Manderino, Menoer son, Jr., May May, Loins Chillas, E. with him 8. WilUam *2 Blakinger, appellant. for Grove, Stork & Stetler, Mueller, Jr., him Paul A. Wevin with Stet- Barley, Snycler, Cooper Mueller, & Gribbin and & ler appellee. for September 1971: by 20,

Opinion Manderino, appeal of from of the Court This is the decision County of which overruled Pleas Lancaster Common Adjustment Zoning of Lan- of of the decision the Board denying application Township R. of H. Mil- caster (Miller) and Inc. concrete bases ler install Co., equipment on their for a bituminous concrete The of Common Pleas re- business site. Court Zoning Zoning Board ordered the Board and versed An to Miller. its Officer to issue and pursu- appeal was taken to the Court Commonwealth Appellate 402 of the Court Jurisdiction to Section ant July (Act P. No. of L. 1970, , 223, Act of 31, seq.). P.S. 211.101et Adjustment Zoning Board of denied Miller’s re- The quest from record that because it concluded requested constitute a use of the would presently nonconforming than and different request- concluded if the The Board also that site. nonconforming not a new use were ed nonconforming expansion prior expansion of twenty-five per of a cent limita- be violation would expansion nonconforming placed uses Township The Board further ordinance. concluded grant problems which would result traffic contrary public request would be in- of Miller’s terest. concluded the record court reviewed

The lower sup- did not the record because Board erred Mil- found that court conclusions. lower port use which for the same ler’s request years for many existed on the site had previously affirm use was involved. We no expansion Lancaster of Common Pleas the action Court County. was before exact site

A involving similar issue Pleas Common the Lancaster Court County involved a determination matter zoning use existing of the nonconforming the nature years for thirty held that over site. the Court busi- use as a stone in continuous the site was a retail business ness, roadbuilding con- used making mineral products selling quarried lots. crete, paving roads, parking *3 the same con- came to court this case the lower case con- in the earlier arrived at clusions previously the busi- court found The lower the site. cerning to on continued existed the property had nesses which for the quar- was used currently and that site exist, the sale of business and building the road ry mineral products. quarried con- concluded that court therefore

The lower for bitu- a bases and equipment of concrete struction since a new use did not involve minous concrete had existed of a continuation it was of a use was no expansion and also that the property location on the property exact because involved construct the bases and equip- to proposed Miller where in the businesses used previously had been ment site. Miller filed his application clear that The record of a new to meet demands permit building instituted by Pennsylva- roads building method Department Highways. macadam Waterbound nia. formerly roads with a base of rolled stone used replaced by being ma- business were bituminous concrete as cadam roads which would use Both the rolled stone and the bituminous base. bases significant degree, concrete bases to the same use, The also shows that there exists on the stone. record ready utilizing mix concrete also site from the business. proposed agree con- that Miller’s

We something and .different from crete already existing on The the land. site the businesses being for the road busi- been and is used has involving of macadam the construction roads ness, operations A modification of the concrete roads. necessary for Miller modernize to its business site is granting change the meet demands. production bring about is the of a dif- of a will type type of material to build different ferent correctly The lower court held that this would of road. simply different the moderni- a new and not be existing nonconforming use on land al- of an zation operations. ready being in Miller’s used justifies clearly that the record the lower thinkWe plan Miller does new use court’s conclusion expand existing intend to noncon- nor does forming Miller desires to continue the Bather, use. changes certain use but must make same ingredients product of its must because by market. demanded *4 examined record and not also it does

haveWe conclusion support Board’s that increased traffic public fact, adversely affect interest. In would evidence void almost which would record is any signifi- that there would be support conclusion a leaving number of trucks increase site cant destinations. daily construction road In Ap Lancaster Re: Mignatti's relies Township its 168 A. to justify 2d 567 (1961), peal, be conclusion that the bituminous concrete would of the land any existing use new and different In decided that there. the court Mignatti, however, exten bitiuninous concrete was not a reasonable sion of an a quarry existing nonconforming not record does crushing plant. case, sustain a conclusion that only nonconforming on the is a and stone existing property crushing There is on the in addition in uses the road and the volving preparation mixed concrete. Miller to start ready plan does a new business or in a new use. Miller engage desires to continue what it been doing exactly has doing what a on the There owner has done prior property. has been a the market now change consumers desire used for type product exactly the same purpose, building.

Since the court below took no additional testimony, but reviewed the be appeal solely record made fore the the function of this court Zoning Board, whether the Board abused determine its discretion or committed an error of Mulac law. 418 Pa. A. (1965). 2d 275 We hold that the Board did err conclusions. The decision the lower court legal is affirmed. Opinion by

Dissenting Rogers: here affirm a brothers lower court’s reversal of My Board’s decision Hearing concrete be constructed might do so a trial They find- accepting judge’s property. what is denominad engaged ings business” and operates it ed “the cement So it finding, concludes that ready-mix *5 the bituminius concrete be a plant would of one part or more of these activities. compelled

We are to dissent because we can find no in evidence this record that conducts appellee business other than that quarrying crushing stones because the Court that Supreme has held bituminous concrete en to or an accessory or extension of an largement existing nonconforming and stone crusher. Mignatti A. 2d 567 144, 168 (1961). chose to its case before the Board appellee try of its counsel with

by colloquy fugi- with those present, interjections its chief executive officer. No tive wit- or nesses were called examined. was an adversary This in had the burden of appellee which the proceeding it entitlement to the showing sought. Ap- was either with unacquainted Mignatti counsel pellee’s hoped that it, Appeal, supra, or, apprehensive fortui- of the proceedings produce casualism might that he luck or, words, might tous inference, plainer out. found

As, appellee road building court admits that the record lower engaged in, to. be show that . . appel- now specifically “does [the of road materials.” in the. selling ... is engaged lee] reference to litiga- evidence by The court supplied a judge previously seven years conducted fon rid “a conducted appellee that a predecessor there by noting business” been this business had in this record no evidence those ex- another of yet It devised thus discontinued! burden of rests proof rule that ceptions cases only zoning applicable moving party, It municipalities. against available on the land and not that it did what to show burden had discontinued to show township

2X9 doing something judge, found that someone else was doing years previously. seven this writer Furthermore, is unable to ascertain either court or what the lower majority phrase “the his brothers mean that the business.” This record shows quarries appellee, Mignatti, it as did rocks which *6 pur- crushes to for sale for stones suitable whatever poses These constitute stones have. no more activities appellee Michelangelo’s use of a road than did builder sculptors quarrymen of Car- their marble make the rara.

Neither, appellee op- can the find evidence that we hearing for the erates cement the counsel At thought appellee he on three occasions what stated justification quote: permit, we “The the for the and application of bituminous other is for the installation corollary plant an of and a concrete which is extension quarry operation. “the and installation to a stone operation part plant the of a bituminous is a the quarry op- again part quarry” of the “It is and appellee operates showing that the eration.” Far from entity plant, an reveals that known cement the record may operate It fur- such Kurtz Brothers as the liti- H. R. individual, Miller, ther discloses once owned gant mentioned, hereinbefore appellee the cor- quarry and that stone' crushers pur- is poration, member, Mr. of which Miller quarry him. crushers from The-trial chased record) (not Mr. when judge informs us that Miller applied quarry liti- he owned permission county to es- court obtained gation quarry plant an extension his of. a cement tablish judge that Mr. built tells us operation.1 he this did. plant; there is no evidence -There Mignatti Appeal, supra, to reached held This result after contrary. apparent to is, however, reference such a at plant existence the location. Appellee’s traffic at counsel, discussing the Board “I hearing, that, remarked: out might point so far as traffic, greatest consumer of course, is, the Kurtz Brothers which does require at all. It the location so hauling that hauling done within the confines and not on That is for their concrete public highway. plant, If you see.” we were to make required findings this we would that Mr. Mil- record, find, by inference, ler of his cement disposed Kurtz Brothers If operation appellee. happened, will have been permitted at least as a continuation of part another’s a novel result indeed. if the even record

Lastly, supported finding a cement jus- we could not appellee operated plant, additional use of the prop- tify establishment *7 location of a as the bituminous concrete erty Benjamin As Mr. R. wrote in Hanna v. Justice Jones 408 Pa. A. Board 183 2d 539 Adjustment, 306, 313, of (1962): ordinance does not prohibit expansion

“This of use. broadening scope [citing or cases]. which the ordinance pro-

“The use property the use which was existence at or ‘freezes’, tects, of the ordinance or the of the passage change the time Darby 391 (Upper Township’s Appeal, of district Lance 399 Pa. 99; Appeal, 138 A. 2d 311, Pa. 347, no to a use protection it offers 715) A. 2d different when the in existence ordinance was from the use which is nonconforming . . The within passed. of the law and the Constitu- of protection orbit use which exists at the time nonconforming ordinance or passage in a use district under a not a new Zoning ordinance, or use.” (Italics nonconforming original). different Tbe or have been held to be addition following al not mere or or extended uses, accessory continued uses: station gasoline used as residence and secondhand car Han na v. Board a beer distributor Adjustment, supra; in the basement of a Lance ship grocery store, Appeal, 159 A. 2d 715 industrial ma (1960); in a store chinery repair and re manufactory shop 174 Pa. Superior Williams Ct. pair garage, 102 A. 2d 186 we believe (1954). Similarly, that a plant for the of bituminous concrete should not production be held to be to or a continuation or exten accessory sion of a cement nonconforming operation

Treadwell v. Commonwealth.