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MILLER CO. (09/20/71)

decided: September 20, 1971.

MILLER CO., INC.'S ZONING APPEAL


Appeal from the Order of the Court of Common Pleas of Lancaster County at No. Tr. Bk. 41, page 347, in case of Appeal of H.R. Miller Co., Inc. from the Zoning Board of Adjustment of Lancaster Township, Lancaster County.

COUNSEL

William E. Chillas, with him Louis S. May and May, Grove, Stork & Blakinger, for appellant.

Nevin Stetler, with him Paul A. Mueller, Jr., Stetler & Gribbin and Barley, Snyder, Cooper & Mueller, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Opinion by Judge Manderino. Dissenting Opinion by Judge Rogers.

Author: Manderino

[ 3 Pa. Commw. Page 214]

This is an appeal from the decision of the Court of Common Pleas of Lancaster County which overruled the decision of the Zoning Board of Adjustment of Lancaster Township denying the application of H.R. Miller Co., Inc. (Miller) to install concrete bases and equipment for a bituminous concrete plant on their present business site. The Court of Common Pleas reversed the Zoning Board and ordered the Zoning Board and its Zoning Officer to issue a permit to Miller. An appeal was taken to the Commonwealth Court pursuant to Section 402 of the Appellate Court Jurisdiction Act of 1970 (Act of July 31, 1970, P.L. , No. 223, 17 P.S. 211.101 et seq.).

The Zoning Board of Adjustment denied Miller's request because it concluded from the record that the requested use of the property would constitute a new and different nonconforming use than was presently on the site. The Board also concluded that if the requested use were not a new nonconforming use but only the expansion of a prior nonconforming use, the expansion would be in violation of a twenty-five per cent limitation placed on the expansion of nonconforming uses by the Township ordinance. The Board further concluded that traffic problems which would result from a grant of Miller's request would be contrary to the public interest.

[ 3 Pa. Commw. Page 215]

The lower court reviewed the record and concluded that the Board erred because the record did not support its conclusions. The lower court found that Miller's request was for the same nonconforming use which had previously existed on the site for many years and that no expansion of the use was involved. We affirm the action of the Court of Common Pleas of Lancaster County.

A similar issue involving this exact site was before the Lancaster County Court of Common Pleas in 1962, in a zoning matter which involved a determination of the nature of the nonconforming use existing on the site. In 1962, the Court held that for over thirty years the site was in continuous use as a stone quarry business, a roadbuilding business, and a retail business for selling quarried mineral products used in making concrete, paving roads, and parking lots.

In this case the lower court came to the same conclusions previously arrived at in the earlier case concerning the site. The lower court found that the businesses which had existed on the property continued to exist, and that the site currently was used for the quarry business, the road building business and the sale of quarried mineral products.

The lower court therefore concluded that the construction of concrete bases and equipment for a bituminous concrete plant did not involve a new use since it was the continuation of a use which had existed on the property and also that no expansion of a use was involved because the exact location on the property where Miller proposed to construct the bases and equipment had been previously used in the businesses on the site.

The record is clear that Miller filed his application for a building permit to meet the demands of a new method of building ...


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