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HOPEWELL TOWNSHIP v. RICHARD L. WILSON AND DEETTA WILSON (10/12/79)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: October 12, 1979.

HOPEWELL TOWNSHIP
v.
RICHARD L. WILSON AND DEETTA WILSON, APPELLANTS

Appeal from the Order of the Court of Common Pleas of York County in case of Hopewell Township v. Richard L. Wilson and DeEtta Wilson, Nos. 76-S-1215; 76-S-1216; 76-S-1217 and 76-S-1218 in Assumpsit and 76-S-796 in Equity.

COUNSEL

Kenneth J. Sparler, with him Anstine & Anstine, for appellants.

Gilbert G. Malone, with him Ports, Beers, Feldmann & Malone, for appellee.

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

Author: Wilkinson

[ 46 Pa. Commw. Page 443]

This is a companion case to Hopewell Township v. Wilson, 46 Pa. Commonwealth Ct. 425, 406 A.2d 610 (1979), being the other appeal from a consolidation of 10 cases instituted by appellee against appellants for zoning violations.*fn1

[ 46 Pa. Commw. Page 444]

Involved in this appeal is the court of common pleas' decision that appellants were in violation of the township zoning ordinance in storing several thousand tires on their property. There is no doubt that the storage of the tires on the property in question was a violation of both the zoning ordinance adopted July 6, 1970 and the ordinance adopted June 20, 1974. The real subsantial issue is whether the storage was permitted as being ancillary to a pre-existing nonconforming use of selling tires.

Appellant Richard L. Wilson has conducted a business of selling farm equipment on the land in question since 1969. Ancillary to this business he sold tires to be used on farm equipment. In 1969 he started Wilson Tire Services which has expanded to be a substantial retail tire business. The appellee does not challenge the normal activities of these two businesses. However, in 1974 appellants "purchased" from Fleet Maintenance Corporation used tires for the acceptance of which a payment of 85 cents per tire was received. The record shows that a total of $9,165.90 was received for accepting these tires. It is the "storage" of these tires on the subject property that is the basis for the trial court's ruling that appellants are in violation of the zoning ordinance. Without laboring the point, we are in entire accord with the trial court's finding, amply supported by the record, that such an unusual acquisition, in such large quantities, and under such unusual financial arrangements, is not ancillary to the normal operation of a tire business.

Finally, appellants contend that that part of their land in question that is used to store these tires is not useful as farmland and that it is unconstitutional to prevent them from using it for purposes not permitted in the agriculture zone. Suffice it to say that appellants have not sought a permit for use of this land to store used tires nor have they applied for a variance

[ 46 Pa. Commw. Page 445]

    nor in any other way brought proceedings to have the zoning ordinance amended. Surely it cannot seriously be pressed that appellants can disregard the zoning ordinance and, when called to task, raise a constitutional issue in this fashion. Township of Millcreek v. Hurst, 27 Pa. Commonwealth Ct. 85, 365 A.2d 896 (1976).

Accordingly, we will enter the following

Order

And Now, October 12, 1979, the order of the Court of Common Pleas of York County, dated August 24, 1978 in 76-S-797, Equity; 76-S-696, 76-S-697, 76-S-698, and 76-S-699 is affirmed.

Disposition

Affirmed.


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