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BEAVER v. BOROUGH OF JOHNSONBURG

March 26, 1976

James J. BEAVER et al., Plaintiffs,
v.
The BOROUGH OF JOHNSONBURG, a Municipal Corporation, et al., Defendants



The opinion of the court was delivered by: WEBER

 At the commencement of trial of the above action the defendant Penntech Paper Company moved to dismiss on the grounds that the zoning ordinance of the Borough of Johnsonburg and the permit issued under said ordinance could not be constitutionally enforced against Defendant Penntech because the standards of the ordinance were so unconstitutionally vague as to make impossible their application to Penntech Paper Company's operations and furthermore, even if the ordinance was valid, its application to Penntech's pre-existing operations would result in a taking of Penntech's property without due process. It was then determined between the court and counsel that the decision on such motion would require the consideration of a limited amount of evidence. Testimony was received from the principal plaintiff as to the conditions created on his property by the operations of the woodchipping facility installed on defendant Penntech's property in 1965 near plaintiffs' residence. Testimony was also received relating to a noise measurement study of both the operations of the Penntech woodchipper facility and the other ambient noises in the area.

 The cause of action asserted in this complaint against the defendants is that a zoning ordinance enacted by the Borough of Johnsonburg in 1965 prohibited the operation of the woodchipper facility on the Penntech property because of excessive noise, dust, and vibrations emitted by such facility. The complaint asserted a cause of action under 42 U.S.C. ยงยง 1983 and 1985, the Civil Rights Act. It alleged that Penntech, the defendant Borough, and the individual defendants who are members of the Borough Council or its Zoning Board of Adjustment had conspired to violate the plaintiffs' civil rights in the quiet enjoyment of their property by refusing to enforce the zoning ordinance or the conditions of a permit issued thereunder against Penntech.

 The history of these properties, developed in prior proceedings before this court, shows that the property now occupied by Penntech Paper Company has been used by this defendant and predecessor paper companies as a paper mill for many years. The plaintiffs' property was once part of the property of a predecessor of Penntech. The woodchipping operations had been conducted for many years on Penntech's land at some distance from plaintiffs' dwelling. In 1965, Penntech transferred the location of the woodchipper facility to an existing industrial building on its property directly across a highway from plaintiffs' residence and installed therein new machinery for the woodchipping operation. The woodchipping operation involves the reduction of large logs into small chips of wood, a necessarily noisy part of any paper-making operation.

 In 1965 the Borough of Johnsonburg enacted its first comprehensive zoning ordinance, which included all of the Penntech property and the plaintiffs' property in a zone designated as "Industrial District." Pertinent parts of the zoning ordinance provide:

 
"ARTICLE II
 
SUPPLEMENTARY REGULATIONS
 
SECTION 201. PROHIBITED USES
 
1. No lot shall be used nor building be erected' altered, or used, for any trade, industry, or business that is obnoxious or offensive by reason of odor, dust, smoke, gas, vibration, illumination, or noise, or otherwise creates a nuisance or hazard to public health, safety, and welfare . . . . ."
 
"ARTICLE XIII
 
1 -- INDUSTRIAL DISTRICT
 
SECTION 1300. USES.
 
1. Uses Permitted:
 
A. Buildings may be erected, altered, or used; and a lot or premises may be used for any ...

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