Appeal from the Order of the Court of Common Pleas of Erie County in case of Walter Kuhl and Margaret Kuhl v. The Zoning Hearing Board of Greene Township and G. W. Trichel and Donald Rosthauser, intervenors, No. 110-A-1979.
Thomas E. Doyle, for appellants.
R. Perrin Baker, for appellees.
William T. Jorden, for intervenors, Green Township Board of Supervisors.
Judges Wilkinson, Jr., Craig and Williams, Jr., sitting as a panel of three. Opinion by Judge Craig.
[ 52 Pa. Commw. Page 250]
Walter and Margaret Kuhl (owners) appeal from an order of the Court of Common Pleas of Erie County which affirmed an adjudication of the Greene Township Zoning Board of Appeals (board) denying use of owners' property as a bank gravel surface mining operation on the ground that its legal non-conforming use status had been abandoned.
The owners, by deed dated October 22, 1978, acquired their 131-acre tract from a partnership consisting of persons named Nelligan and Stoddard.
The tract is presently zoned R-1, Rural Residential, and has been so classified since the township first enacted zoning in 1967. Operation of a gravel pit is a forbidden use in R-1 districts. However, the board found that Clark Construction Supply Company (Clark), under a lease with the Nelligan-Stoddard partnership, had removed sand and gravel from the
[ 52 Pa. Commw. Page 251]
tract from 1963 at least through 1972. Thus, no question is raised, nor could there be on the record, that before the enactment of the zoning ordinance an active gravel pit operation was being conducted and thus became a legal non-conforming use in the R-1 district. Twenty of the 131 acres have been involved in the non-conforming use.
However, when the owners sought certification of the existence of the non-conforming use as of 1978, the board found that it had been abandoned in 1973 and the lower court, on ...