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TOWNSHIP UPPER MORELAND v. FRED GAUNT AND GEORGE GAUNT (11/27/74)

decided: November 27, 1974.

TOWNSHIP OF UPPER MORELAND, APPELLANT,
v.
FRED GAUNT AND GEORGE GAUNT, APPELLEES



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Fred Gaunt and George Gaunt v. Upper Moreland Township Zoning Hearing Board, No. 73-03509.

COUNSEL

Raymond Jenkins, with him Jenkins & Acton, for appellant.

Joseph D. Shein, with him Shein & Brookman, P.A., for appellees.

Judges Crumlish, Jr., Kramer and Wilkinson, Jr., sitting as a panel of three. Opinion by Judge Kramer.

Author: Kramer

[ 16 Pa. Commw. Page 335]

This is an appeal filed by the Township of Upper Moreland (Township) from an order of the Court of Common Pleas of Montgomery County, dated September

[ 16 Pa. Commw. Page 33611]

, 1973. This order sustained the appeal of Fred Gaunt and George Gaunt (Gaunt) from an order of the Township's Zoning Hearing Board (Board) which, in effect, vacated a use permit issued by the Township, which had permitted the Gaunts to use certain property for a nonconforming use. The court's order also directed the Township to revalidate the use permit.

The property in question is a large 30-foot square garage which had been converted, at sometime in the past, into a machine shop. In July of 1967, when the present owner purchased the property on which the subject building stands, the garage was rented to a tenant engineer who did prototype work, including patent development, after his regular working hours. At that time the garage housed an extensive amount of metal-working machinery, lathes, grinders, milling machines, drill presses and saws. For some six months during 1968, this same tenant expanded the activity into "shopping shop work," i.e., small-scale production. Although the record indicates some question as to whether the machine shop was in operation after September of 1968, the record clearly shows that the machinery was still on the premises until at least May of 1971, when the tenant removed the machinery.

On September 17, 1971, the Gaunt brothers executed an agreement for the purchase of the premises through real estate agents representing both the buyer and seller. Because there was a question concerning the nonconforming use of the property, the seller's real estate agent accompanied the Gaunts and their real estate agent to the Township's Director of Licenses and Permits. The record clearly shows that the Gaunts made a complete disclosure of their intended use of the property as a woodworking shop which would entail the use of powered saws, drills, planers and sanders. Apparently the Director of Licenses and Permits was satisfied that the Gaunts' intended use

[ 16 Pa. Commw. Page 337]

    was the continuation of the existing nonconforming use. Upon the payment of the $10.00 fee, the permit was issued September 20, 1971. It should be noted that the agreement to sell the realty to the Gaunts contained a condition that the sale was subject to approval by the Township for the intended woodworking shop usage. After receiving the permit issued by the Township, the transaction was closed on November 19, 1971 and almost immediately thereafter the Gaunt brothers moved their machinery and commenced the operation of their woodworking business (mainly the construction of kitchen cabinets).

Because the Gaunt operation created more noise than had the activities of the previous tenant, and because certain woodburning odors were emitted, the neighbors in the area made complaints to the Township officials. The Gaunts were advised that their permit would be withdrawn, and, some seven months later, they were advised by the same Director of Licenses and Permits that they were required to file a petition for a variance. The petition was filed, but, after consulting counsel, the Gaunts withdrew the petition on May 25, 1972. Thereafter, on a date not disclosed anywhere in the record, an undated petition signed by neighbors protesting the Grants' use of the property was presented to the Board in some undisclosed manner. On June 27, 1972, the Township Solicitor sent a letter to the Gaunts alleging that the use permit had been issued based upon "some misinformation ...


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