Appeal from the Order of the Court of Common Pleas of Fayette County in case of County of Fayette v. Raymond E. Cossell and Charlotte Cossell, his wife; and Robert E. Cossell, Jr. and Ruth Ann Cossell, his wife, Nos. 1595 of 1978 C.D. Equity and 719 of 1978, C.D. Equity.
Philip T. Warman, for appellant.
Murray I. Horewitz, with him Thomas A. Bowlen, for appellees.
Judges Craig, MacPhail and Palladino, sitting as a panel of three. Opinion by Judge Craig.
[ 60 Pa. Commw. Page 203]
The County of Fayette (county) appeals from a decision of the Fayette County Court of Common Pleas affirming a chancellor's order dismissing the county's complaint in equity which sought an injunction against the operation of an automobile recycling center by appellees, the Cossells, on their property.
In January, 1978, the Cossells purchased the property involved. Under the Fayette County Zoning Ordinance, which became effective on October 16, 1968, the property is located in an M-1 Light Industrial Zone. Operation of an automobile recycling (junk) business is a forbidden use in an M-1 district, but the Cossells have been operating that business on the premises.
The chancellor found that, from a period predating the zoning ordinance until the Cossells purchased the property, Mr. Rose, an adjacent landowner,
[ 60 Pa. Commw. Page 204]
had used 40% of the land at issue to store junked automobiles. Although Mr. Rose did not have a lease or any other formal permission from the Cossells' predecessor in title to use the property to store junked vehicles, the trial court held that Mr. Rose's use of the property established a nonconforming use in the nature of an auto junkyard which the Cossells had a right to continue.
The Fayette County Zoning Ordinance defines nonconforming use as "any lawful use of a building or land existing at the effective date of adoption or amendment of this ordinance and which does not conform to the regulations of the district in which it is situated." We note the phrase "lawful use" in that definition.
The county contends that Mr. Rose's encroachment could not be used to establish a nonconforming use because it was trespassing and hence unlawful in that respect. We cannot agree.
Zoning regulations "concern the physical use to which the land is put." See Sears Roebuck and Co. v. Power, 390 Pa. 206, 134 A.2d 659 (1957) (holding sales law concepts not to be relevant to zoning). Zoning laws, enactments under the police power, are not concerned with method of ownership of property. See Kaufman and Broad, Inc. v. Board of Supervisors of West Whiteland Township, 20 Pa. Commonwealth Ct. 116, 340 A.2d 909 (1975) (holding the condominium form to be a method of ownership, and not a proper subject of zoning). Zoning ordinances regulate usage; if a use is permitted, a municipality may not regulate the manner of ownership of the ...