574 A.2d 1201 | Pa. Commw. Ct. | 1990
The Springfield Township Board of Supervisors (Township) has appealed from an opinion and order of the Court of Common Pleas of Bucks County, reversing in part the decision of the Springfield Township Zoning Hearing Board (Board) which upheld a cease and desist order issued by the Springfield Township Zoning Officer. The trial court found that Ski Brothers, Inc. and Gemstar, Inc. (collectively
Ski has conducted a junkyard/auto salvage operation on land owned by its principals since 1946. Such use is a lawful nonconforming use.
Gemstar, which leased a portion of the property comprising the junkyard, was organized as a separate corporation by some of the principals in Ski. Gemstar planned to install a tire processing and chopping facility which consisted of cutting up old tires into three inch square blocks. Gemstar discussed their intentions with various Township officials, and sought permits to construct a building to house a processor and shredder. Both permits were issued. Subsequently, Gemstar began purchasing truckloads of tires. Due to a delay in the installation of appropriate electricity, the accumulation of tires on the property rose from approximately 100,000-200,000 tires to 750,000-1,000,000 tires.
The Board began receiving citizen complaints about the increased tire hauling and storage, and authorized the Zoning Officer to issue a cease and desist order alleging violations of the zoning ordinance. Ski/Gemstar appealed to the Board which, after numerous hearings, issued an order reversing the Zoning Officer’s cease and desist order. The Board found that the tire operation was a new use not incident to the operation of a nonconforming junkyard, but that Ski/Gemstar’s rights to the permits had vested. In
The trial court affirmed the Board’s reversal of the cease and desist order, but found the tire operation to be a continuation of a permitted nonconforming use. The trial court also rendered null and void the specific terms and conditions imposed by the Board. The Township now appeals that decision to this Court.
Prior to oral argument of this matter, Ski/Gemstar filed a Motion to Quash asserting that the Township did not properly raise the striking of the conditions by the trial court in its Statement of Appeal. Furthermore, Ski/Gemstar accuses the Township of first declaring its position in support of the Board and then on appeal asserting issues inconsistent and contrary to the Board’s decision. We conclude that there are no inconsistencies. We also note that the issue of the deletion of conditions by the trial court, while raised in the Township’s Notice of Appeal, was not included in the Statement of Questions Involved. Therefore, pursuant to Pa.R.A.P. 2116(a),
The Township, in its Statement of Questions Involved, raised three issues on appeal: (1) whether the accumulation of tires for storing and processing constitutes an illegal expansion of a nonconforming junkyard/auto salvage yard and establishment of a new use; (2) whether a vested right was acquired to utilize the property for tire stamping and for storage of used tires; and (3) whether the Township’s request to expand the record with after-discovered evidence was incorrectly denied.
The Board considered the definitions of junk and junkyard under the zoning ordinance and concluded that tires are included in the definition as a form of waste and as part of junked motor vehicles. It found that the change in the method of accepting the tires and the increase in volume was not a continuation of the permitted nonconforming use. However, this Court has held that a municipality does not have the power to prevent an owner from making additions to its nonconforming enterprise so as to limit its natural expansion and the accommodation of increased trade. Austin v. Zoning Hearing Board of Fork Township, 91 Pa.Commonwealth Ct. 356, 496 A.2d 1367 (1985).
In the case of Township of Chartiers v. William H. Martin, Inc., 518 Pa. 181, 542 A.2d 985 (1988), the Supreme Court set out the principles governing the expansion of a nonconforming use and evaluated the natural expansion doctrine. In reviewing numerous cases, the court found extensions of nonconforming uses to be proper. In a sand loam business, expansion in depth and area was proper. Cheswick Borough v. Bechman, 352 Pa. 79, 42 A.2d 60 (1945). In another case, a nonconforming use could not be limited by the zoning ordinance to the precise magnitude which existed on the date of the ordinance’s adoption. Humphreys v. Stuart Realty Corporation, 364 Pa. 616, 73 A.2d 407 (1950). The court also held that a change in instrumentality will not defeat the purpose or existence of a nonconforming use. Chartiers. In other words, an operator of a nonconforming use may incorporate modern technology into his business without fear of losing that busi
Applying the Chartiers criteria to the factual situation here, it is apparent that the trial court was correct in reversing the Board’s conclusion that the tire chopping and processing was a new use. Ski/Gemstar have introduced modern technology into their business over the years. Different methods were used to process cars and their parts as new technology became available. The number of cars processed per day increased dramatically as each new method was instituted. We, therefore, conclude that Ski/Gems-tar’s installation of the tire stamping process is a natural expansion of their nonconforming use.
The trial court found it unnecessary to decide the vested rights issue due to Ski/Gemstar’s protected status as a continuing non-conforming use. In a footnote, the court expressed its agreement with the Board’s assessment that a vested right to utilize the tire stamping machinery had been acquired by Ski/Gemstar. We also agree and make the following comment. A township, having granted permits from which no appeal was taken, bestows upon the owner a right to develop or build according to permit. Despite zoning deviations, this right becomes incontestable. Neshaminy Plaza II v. Kelly, 21 Pa.Commonwealth Ct. 469, 346 A.2d 884 (1975).
Finally, the trial court was correct in denying the Township’s request to expand the record with after-discovered evidence. “The decision to take additional evidence is vested in the discretion of the common pleas court.” Lower Allen Citizens Action Group, Inc. v. Lower Allen Township Zoning Hearing Board, 93 Pa.Commonwealth Ct. 96, 106, 500 A.2d 1253, 1259 (1985). There must be a demonstration that the record before the board was incomplete and that there was a refusal of an opportunity to be heard
We are satisfied with the trial court’s conclusion that the tire processing and chopping operation is a legitimate expansion of a nonconforming use; and that Ski/Gemstar had acquired a vested right. Therefore, the Township’s claims to the contrary must be rejected. Accordingly, we affirm.
ORDER
AND NOW, this 11th day of May, 1990, the order of the Court of Common Pleas of Bucks County in the above-captioned matter is affirmed.
. The current Springfield Township Zoning Ordinance was adopted in 1975 and at all times since its passage, the property at issue was zoned resource protection, a zoning classification which allows only agricultural and residential uses.
. Pa.R.A.P. 2116(a) states in pertinent part that "[t]his rule is to be considered in the highest degree mandatory, admitting of no exception; ordinarily no point will be considered which is not set forth in the statement of questions involved or suggested thereby.”