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MICHAEL BIGGAN v. FOSTER TOWNSHIP ZONING HEARING BOARD (12/14/79)

filed: December 14, 1979.

MICHAEL BIGGAN, APPELLANT,
v.
FOSTER TOWNSHIP ZONING HEARING BOARD, APPELLEE, V. MICHAEL KASCHAK, INTERVENOR



No. 2483 October Term, 1978, appeal from the June 2, 1978 Order of the Court of Common Pleas of Luzerne County, Case 953 of 1976.

COUNSEL

Michael T. Conahan, Hazelton for appellant.

Le Roy Lenhart, Freeland, did not file briefs for Foster Township Zoning Hearing Board, appellee.

Michael Kaschak, appellee, in pro. per.

Cercone, President Judge, and Hoffman and Watkins, JJ. Hoffman, J., files a dissenting statement.

Author: Watkins

[ 272 Pa. Super. Page 514]

This is an appeal from the order of the Court of Common Pleas of Luzerne County, by the appellant, Michael Biggan,

[ 272 Pa. Super. Page 515]

    holding him in civil contempt for allegedly failing to follow the court's directives with regard to the operation of appellant's junkyard. Defendant was fined $1,000.00 and sentenced to ten (10) days in prison by the court below for failing to obey the order of the court below dated July 16, 1976.

Appellant and his son, Paul Biggan, are engaged in the junkyard business on .454 acres of land owned by Michael Biggan. The junkyard is located in a residential neighborhood in Foster Township, Luzerne County. On October 3, 1975, upon complaints of neighbors of the appellant, the Township Zoning Officer issued appellant a cease and desist order instructing him to cease all junkyard activities on the land. The neighbors had complained about the burning, storing and crushing of junk cars which appellant was allegedly performing on said .454 acres of land and on four acres of land located across the roadway from his tract. On January 16, 1976, the Township Zoning Hearing Board upheld the action of the Zoning Officer. Appellant then appealed the matter to the Court of Common Pleas of Luzerne County and on July 16, 1976 that court handed down an order which affirmed in part and reversed in part the order of the Zoning Board. The court found that the Biggans had been using his .454 acres as a junkyard since the late 1950's. This antedated the township zoning ordinance which was enacted in 1967. Therefore, Biggan's use of his land as a junkyard was a lawful non-conforming use. The court also found that in 1974 appellant began to use a four acre tract located across the road from his .454 acre tract in order to carry on the junkyard activities which included the burning, curring and crushing of the junked vehicles. After hearings on the matter, the court below ordered appellant to cease all junkyard activities on the four acres of land across the roadway from his tract. The court, however, reversed the zoning board's decision regarding appellant's .454 acre tract and held it to be a lawful, non-conforming use. The court then ordered appellant to fence or screen the .454 acre tract as required by the 1967 zoning

[ 272 Pa. Super. Page 516]

    ordinance, to restrict the use of the .454 acre tract to the storage of not more than five vehicles at any one time and prohibited the burning and crushing of junked cars on the .454 acre tract. Appellant then appealed the part of the July 16, 1976 order restricting his use of the .454 acre tract to the Commonwealth Court. In Biggan v. Foster Township Zoning Hearing Board et al., 32 Pa. Commw. 426, 379 A.2d 657 (1977), the Commonwealth Court upheld the lower court's ruling regarding the use of the four acre tract, and recognized that appellant's use of the .454 acre tract was a lawful, non-conforming use. However, the court reversed the lower court's restrictions on the use of the .454 acre tract because the record was not clear with respect to appellant's use of that tract prior to October 16, 1967 (the date of the adoption of the zoning ordinance). Therefore, the Commonwealth Court ruled that appellant could store more than five cars on the .454 acre tract and ruled that the order to cease all crushing and burning of vehicles on that tract was unlawful as it exceeded the scope of the issues involved before the lower court.

On March 14, 1978, the court below entered another order giving appellant thirty (30) days to survey their property to establish the boundaries of their .454 acre tract, to erect a fence around their property and to confine their junkyard activities to that specific area. On June 2, 1978 a hearing was held before the lower court regarding appellant's alleged violations of the July 16, 1976 order as more specifically defined and modified by the Commonwealth Court decision and the March 14, 1978 order. After the June 2, 1978 hearing the court below found appellant in contempt of the July 16, 1976 order, as modified and fined appellant $1000.00 and sentenced him to ten (10) days in jail. This appeal followed in which appellant argues that he was not in contempt of court because he did not willfully disobey the ...


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