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CLIFFORD R. PFEFFER AND RUTH PFEFFER v. HOPEWELL TOWNSHIP (07/08/81)

decided: July 8, 1981.

CLIFFORD R. PFEFFER AND RUTH PFEFFER, APPELLANTS
v.
HOPEWELL TOWNSHIP, APPELLEE



Appeal from the Order of the Court of Common Pleas of York County in the case of Hopewell Township v. Clifford Pfeffer and Ruth Pfeffer, No. 79 S 1251.

COUNSEL

Edward B. Golla, with him, Raymond R. Smith, for appellants.

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

Judges Rogers, Blatt and Palladino, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 60 Pa. Commw. Page 400]

Clifford and Ruth Pfeffer have appealed an order of the Court of Common Pleas of York County dismissing their exceptions to, and adopting as the final decree, a decree nisi enjoining them from violating provisions of the Hopewell Township zoning ordinance. The Pfeffer's own a parcel of land with improvements located in the commercial zoning district of Hopewell Township. They or agents of theirs from time to time conduct sales of used merchandise on the property. In connection with the sales, used household appliances, bicycles, tractors and automobiles were stored out-of-doors.

The township sued to enjoin the practice of out-door storage charging that it violated zoning provisions requiring set backs, regulating junkyards and the storage of discarded materials, and establishing open spaces.*fn1 The appellants filed an answer defending the suit on the single ground that their use of the property for the sale of used merchandise and related storage of sale items antedated the enactment, in 1974, of the zoning ordinance and was, therefore, a lawful nonconforming use.

[ 60 Pa. Commw. Page 401]

Following a trial at which conflicting testimony was introduced on the question of the present use of the property and its use prior to 1974, the chancellor found the appellants to be in violation of the zoning ordinance and granted the injunctive relief requested by the township. He held that the defense of the existence of a nonconforming use was unavailable to the appellants under the rule enunciated in Philadelphia v. Budney, 396 Pa. 87, 151 A.2d 780 (1959). See also Honey Brook Township v. Alenovitz, 430 Pa. 614, 243 A.2d 330 (1968); Township of Millcreek v. Hurst, 27 Pa. Commonwealth Ct. 85, 365 A.2d 896 (1976); Funk v. Township of Bensalem, 17 Pa. Commonwealth Ct. 205, 342 A.2d 785 (1975). We agree.

In Muncy Borough v. Stein, 440 Pa. 503, 507, 270 A.2d 213, 215 (1970) the Court summarized the Budney rule as follows:

As to the defense of nonconforming use, we held in Honey Brook and in Philadelphia v. Budney, 396 Pa. 87, 151 A.2d 780 (1959), that if the applicable zoning ordinance provides . . . an administrative machinery by which the right to continue the nonconforming use might be determined that such a defense cannot be raised in an equity proceeding. See also Jonnet v. Bodick, 431 Pa. 59, 244 A.2d 751 (1968). We stated that such matters are to be heard exclusively by the administrative tribunals.

Sections 406.8, 601.1, 601.2, and 601.7 of the Hopewell Township zoning ordinance provide for the registration of nonconforming uses and require the zoning officer to prepare and make available to landowner-applicants forms for the purpose of registration. The zoning officer testified that such forms were available but that the appellants never registered their sales yard. ...


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