Appeal from the Order of the Court of Common Pleas of Union County in case of Township of Kelly v. The Zoning Hearing Board of Kelly Township v. Richard L. Poeth and Anna E. Poeth, No. 174 of 1973.
Peter L. Matson, with him Matson, Brann and Bromfield, for appellants.
H. William Koch, with him Windsor and Koch, for appellee.
Judges Wilkinson, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.
[ 36 Pa. Commw. Page 510]
This is an appeal from a decision of the Court of Common Pleas of Union County which denied the issuance of a building permit to the intervenors-appellants that would have allowed them to erect a large hydraulic shears machine for use in their junkyard business. We affirm.
Appellants purchased land in Kelly Township, Union County, in 1962. At the time of this purchase the land was used for agricultural purposes. In 1963, however, appellants began to operate, on a part-time basis, a scrap and salvage yard on the premises. Most of the work was initially done by hand with the aid of an acetylene torch. Shortly after March 1, 1968, however, appellants put into service mechanical shears, which are used to cut scrap into the desired length. Appellants did not obtain a permit for the installation of these shears. Also in 1968, appellants
[ 36 Pa. Commw. Page 511]
began to construct a new building, which now houses an office, shop and warehouse.
On March 1, 1968, Kelly Township enacted a zoning ordinance which classified appellants' land as residential and farm reserve. This rendered appellants' business a nonconforming use. Appellants now seek a building permit for the installation of a machine consisting of a 940 ton hydraulic guillotine shears with squeeze box, contour edge hopper, and pump unit. This machine is capable of crushing a motor vehicle into a bale and then cutting that bale up into small pieces. The machine is 52 feet long, 32 feet wide, and 20 feet high, and weighs 295,000 pounds. With this machine appellants could process at least 50 motor vehicles per day, which is currently what they process in a week. Appellants would also be capable of processing new scrap items that previously were uneconomical for them to handle.
The requested permit was initially denied by the Kelly Township zoning officer. On appeal, the Zoning Hearing Board (Board) reversed and ordered that the permit be granted provided certain conditions were observed. On appeal to the trial court, the Board was reversed. The trial court ruled that the proposed construction was not part of a natural expansion of appellants' business and therefore ordered the permit denied.
In B & B Shoe Products Co. v. Zoning Hearing Board, 28 Pa. Commonwealth Ct. 475, 479-480, 368 A.2d 1332, 1334 (1977), Judge Blatt stated as follows:
[A] property owner has a constitutional right to expand a lawful nonconforming use to meet natural business expansion so long as the health, safety, and welfare of the community is not jeopardized. Thayer v. Lower Milford Township, 16 Pa. ...