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TOWNSHIP MILLCREEK v. ELVIN W. HURST AND HELEN M. HURST (11/16/76)

decided: November 16, 1976.

TOWNSHIP OF MILLCREEK, COUNTY OF LEBANON, PENNSYLVANIA
v.
ELVIN W. HURST AND HELEN M. HURST, HIS WIFE, AND KOUNTRY KRAFT KITCHENS, INC., APPELLANTS



Appeal from the Order of the Court of Common Pleas of Lebanon County in case of Township of Millcreek, County of Lebanon, Pennsylvania v. Elvin W. Hurst and Helen M. Hurst, his wife, and Kountry Kraft Kitchens, Inc., No. 1 of 1975 in Equity.

COUNSEL

C. Walter Whitmoyer, Jr., for appellants.

David J. Brightbill, with him Lewis, Brubaker, Christianson & Brightbill, for appellee.

President Judge Bowman and Judges Mencer and Blatt, sitting as a panel of three. Opinion by President Judge Bowman.

Author: Bowman

[ 27 Pa. Commw. Page 86]

Elvin W. and Helen M. Hurst (appellants) own a 75 acre tract in Millcreek Township, Lebanon County, upon a portion of which they have, since 1959, operated a business of designing, manufacturing and selling custom-made kitchens. They are also engaged in farming and raising cattle on the remainder of the tract. In 1966, the business was incorporated as Kountry Kraft Kitchens, Inc. (also an appellant herein), and the corporation leases parts of the tract from the individual appellants who are its sole shareholders. The Millcreek Township Zoning Ordinance, effective April 14, 1971, places the tract in a Residential Farm District, and appellants' kitchen business is a lawful pre-existing nonconforming use thereunder.

On August 13, 1974, the corporation acquired an airplane, and on October 30, 1974, appellant Elvin Hurst was licensed by the Department of Transportation, Bureau of Aviation, to operate a personal use airport on a portion of the tract which had recently been leased to the corporation for this purpose by the individual appellants. Since that time, and without seeking a zoning permit, appellants have used such portion as a turf landing strip for the takeoff and landing of the airplane, which is used to service customers and dealers of the business. Previously, the particular area occupied by the landing strip was apparently devoted exclusively to the individual appellants' farming and cattle raising operation.

On January 9, 1975, the Township filed a complaint in equity in the Lebanon County Court of Common Pleas, alleging that the appellants were in violation of the zoning ordinance and requesting that they be enjoined from further use of the tract for purposes of takeoff, landing and parking of any airplane. After the pleadings were closed, the Township moved for

[ 27 Pa. Commw. Page 87]

    summary judgment. The court below granted the Township's motion and this appeal followed.

The issue presented is whether the appellants are entitled, in an equity action, to raise the defense that the turf landing strip constitutes an accessory use to, or an expansion of, a pre-existing nonconforming use. The resolution of this issue turns on whether the zoning ordinance provides the administrative machinery necessary to determine appellants' rights. The court below held that it did and, therefore, granted summary judgment in the Township's favor. We affirm.

Philadelphia v. Budney, 396 Pa. 87, 89, 151 A.2d 780, 781 (1959), established the general principle that property owners may not raise the defense of a pre-existing nonconforming use in an equity action:

"The legislature has provided that zoning matters are to be heard exclusively by administrative tribunals which were created for that express purpose. . . . If we were to permit a person, sought to be restrained from violating the ordinance, to introduce testimony of a nonconforming use, we would have equity courts replacing boards of adjustment. Instead of people seeking to enforce their rights through the proper administrative procedures, we would have them continue to violate the ordinances waiting for the city to bring an equity action at which time their right to a variance or a special exception would have ...


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