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BOROUGH TRAPPE v. BRUCE F. LONGAKER (06/10/81)

decided: June 10, 1981.

BOROUGH OF TRAPPE, APPELLANT
v.
BRUCE F. LONGAKER, APPELLEE



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Borough of Trappe v. Bruce F. Longaker, No. 74-4292.

COUNSEL

Lawrence Sager, Sager & Sager, for appellant.

Barry W. Kerchner, for appellee.

Judges Blatt, Craig and Williams, Jr., sitting as a panel of three. Opinion by Judge Williams, Jr. Judge Wilkinson, Jr. did not participate in the decision in this case.

Author: Williams

[ 59 Pa. Commw. Page 573]

This appeal by the Borough of Trappe arises from a saga of continuous efforts by the Borough to stop Bruce F. Longaker from using his property as a junkyard. The factual pattern of this case is further complicated by the appellee's own initiative efforts to overcome any legal impediments to his use of his property as a junkyard.

The Borough's efforts commenced with the filing of a Complaint in Equity against Longaker on March 28, 1974, for the alleged violation of the provisions of Section 1707 of the zoning ordinance in effect at that time, Ordinance Number 183. That ordinance prohibited the use of property as junkyards, scrapyards or automobile graveyards in the township. On August 8, 1975, an injunction was issued against Longaker restraining him from servicing, parking and repairing vehicles on his property. Following the issuance of the injunction, three successive contempt petitions were filed by the Borough against Longaker during the course of the next four years.

The Borough filed the first of its contempt petitions on December 20, 1976, in response to a petition filed by Longaker to dissolve the injunction. On March 9, 1977, the Court of Common Pleas of Montgomery County disposed of both petitions, pursuant to the stipulation of the parties, by issuing a Consent Decree which modified the August 8, 1975 injunction.

[ 59 Pa. Commw. Page 574]

By the terms of the modified decree, Longaker agreed to clean up his property and the Borough agreed to withdraw its Petition for Contempt.

On February 18, 1977, however, approximately three weeks prior to the issuance of the Consent Decree, the appellee filed a challenge to Section 1707 of Ordinance Number 183 along with an application for a Curative Amendment.

The record suggests that in addition to pursuing its legal actions against Longaker, the Borough expended a great deal of energy in legislative efforts to circumvent Longaker's challenge as well as to gain municipal control over Longaker's use of his property.

The Borough scheduled a hearing on the challenge for April 13, 1977. Immediately prior to the hearing, however, apparently in recognition of the constitutional infirmity inherent in Section 1707, the Borough enacted a zoning amendment, Ordinance Number 183-D, which allowed junkyards in the limited industrial district of the township.*fn1 At the scheduled hearing, the Borough then dismissed Longaker's challenge on the grounds that the amendatory ordinance cured the defect of total exclusion of junkyards as a permitted use in the township. Thereafter, on May 2, 1977, the Borough enacted yet another ordinance, Ordinance Number ...


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