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decided: February 22, 1983.


Appeal from the Order of the Court of Common Pleas of Bucks County in case of Township of Hilltown v. Eugene C. Bevans and Marie G. Bevans, h/w, No. 80-9350-11-5.


William R. Cooper, with him Stewart J. Greenleaf, Cooper & Greenleaf, for appellants.

Jeffrey A. Drake, with him Charles S. Wilson, Charles S. Wilson & Associates, for appellee.

Judges Blatt, Craig and Doyle, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 72 Pa. Commw. Page 228]

Mr. and Mrs. Eugene C. Bevans, as landowners, appeal a zoning decision of the Bucks County Court of Common Pleas, which ordered them to cease operation of their trucking enterprise in Hilltown Township.

The facts leading to the appeal are as follows:

On August 26, 1977, the owners bought property located in a district zoned Rural Residential (RR) under the township's zoning ordinance. The previous owner, who had owned the land since 1949, was a general contractor, who, on occasion, had parked several of his trucks on the premises.

After purchasing the property, the owners built a parking lot and facilities to service and accommodate an average of nine trucks daily.*fn1 On October 19, 1979, a township zoning officer, categorizing the owners' enterprise as a truck terminal, served them with an order to stop their operation, on the ground that their use was not permitted in an RR district. Because they did not comply, the township ultimately filed a complaint in equity to enjoin the trucking operation.

[ 72 Pa. Commw. Page 229]

Before addressing the zoning question, we must first consider the owners' procedural claim. The Bevans had responded to the township's complaint by filing an anwer and new matter. The township replied to the new matter, often responding as follows: "Denied. It is denied [reiteration of averment]." The owners contend that, under Pa. R.C.P. No. 1029(b),*fn2 the township's general denial must be construed as an admission.*fn3

However, we need not focus on whether the general denials constituted admissions*fn4 because, shortly after the trial began, the common pleas court allowed the township to amend its pleadings to respond to the new matter in a more thorough manner. The owners contend

[ 72 Pa. Commw. Page 230]

    that the trial court abused its discretion in allowing the amendment of the pleadings, which they allege had a prejudicial effect, because the township was able to introduce the defense of abandonment of a nonconforming use and raise for the first time its technical position that it intended to rely upon a Public Utility Commission (PUC) certificate issued to the Bevans to support its theory that they were conducting a truck terminal.*fn5

The right to amend pleadings is ordinarily a matter resting in the sound discretion of the trial court. Puleo v. Broad Street Hospital, 267 Pa. Superior Ct. 581, 407 A.2d 394 (1979). Furthermore, amendments should be allowed with great liberality at any stage of the case. Id.*fn6

However, amendments to pleadings will not be permitted if undue prejudice would result to the pleader's opponent, Bata v. Central Penn National Bank, 448 Pa. 355, 293 A.2d 343 (1972), or deprive him of some substantive right. First National Bank v. Tomichek, 140 Pa. Superior Ct. 101, 13 A.2d 126 (1940).

Here, however, there was no prejudicial effect in the trial judge's decision to allow the amendments to the pleadings. The court found that the use of the property differed from that of the previous owner's, and, therefore, the issue of abandonment had no bearing on the outcome of the case. Also, as to the PUC certificate, the trial court's decision did not base its rationale for finding a truck terminal on that certificate. Therefore, we conclude that the trial judge's decision to allow the township to amend its pleadings did not result in prejudice to the Bevans.

[ 72 Pa. Commw. Page 231]

We now focus on the pivotal question in this appeal: Was the trucking operation a permitted use in the RR District?

Arguments have centered on whether the owners were operating a "truck terminal," a use that has been prohibited expressly in the RR district since the present zoning ordinance became effective June 11, 1977,*fn7 or a "trucking business," a use first expressly characterized as prohibited in the RR district by the ordinance amendments enacted in 1980.

The parties' emphasis on ascertaining which uses are prohibited in an RR district, rather than on which are permitted, stems from their preoccupation with section 404 of the ordinance, which is written as a tabular matrix listing seventy-six uses and indicating whether each use is a permitted use, nonpermitted use, conditional use or special exception within each type of district.

However, in approaching the mutually acknowledged issue -- the permissibility of trucking activity in RR -- by debating the owners' concept of truck "terminal"*fn8 versus the township's view of what a "terminal"

[ 72 Pa. Commw. Page 232]

    is,*fn9 the parties have failed to be guided by other important terms of the ordinance in the record before them.

Splitting hairs over whether the operation is a truck terminal or a trucking business is not necessary because section 400 of the ordinance plainly provides:

Except as provided by law or in this Ordinance, in each district no building, structure, or land shall be used or occupied except for the purposes permitted in section 404 and for the zoning districts so indicated.

Thus, unless a use is expressly permitted, it is prohibited. Because no trucking use has ever been expressly permitted in the RR district during the period involved here, all trucking uses have been barred in that district, even though not listed in the table as prohibited. Therefore, the operation was not and is not a permitted use.*fn10

[ 72 Pa. Commw. Page 233]

We must next decide whether or not the operation is a continuation of a legal nonconforming use conducted since the previous owner's occupancy. Specifically, we must determine whether the use is similar to or different than that of the previous owner. See Hanna Page 233} v. Board of Adjustment, 408 Pa. 306, 313-14, 183 A.2d 539, 543-44 (1962) ("The non-conforming use which is within the orbit of protection of the law and the Constitution is a non-conforming use which exists at the time of the passage of the zoning ordinance or the change in a use district under a zoning ordinance, not a new or different non-conforming use.")

The trial court, in its findings of fact, found that the previous owner was a general contractor, but that "at no time did he ever conduct his business on the subject property . . . [although] he did own two pick-up trucks and a flatbed truck that were parked on said premises from time to time. When these vehicles were on the premises, they were parked in the garage overnight." In comparison, the court found that the owners "use seven dump trucks and two pick-up trucks in their business. These vehicles are parked out-of-doors on the subject premises overnight. In addition, the [Bevans] repair the trucks, fuel them and wash them out-of-doors on the premises. No business office is maintained away from the subject property by the [Bevans]. Business calls regarding the delivery and hauling of stone are taken by the [Bevans] in their home on the subject property." Furthermore, the Bevans have "six employees who report to [the] property every morning . . . , warm up the trucks, leave to pick-up and deliver stones with the trucks, then return the trucks to this property at the end of the day. These employees leave their own cars on the subject property during their working hours." In short, unlike the Bevans who clearly conduct business on the premises, the trial court found that the previous owner "used his premises as his residence and did not do work on his property."

Given those significant differences, and recognizing that the burden is on the property owner to establish the existence of a previous nonconforming use,

[ 72 Pa. Commw. Page 234]

    truck repairs. The garage and the adjacent parking lot cost $16,000 to construct.

As to the township's alleged acquiescence, as we have discussed above, the court found that the Bevans conducted a different use than the previous owner. Furthermore, mere inaction by a municipality will not justify a variance to permit the continuance of an unlawful use, at least in the absence of evidence of direct injury to an owner who is completely innocent. Milewski v. City of Philadelphia, 27 Pa. Commonwealth Ct. 59, 365 A.2d 680 (1976).*fn15

In Hasage v. Philadelphia Zoning Board of Adjustment, 415 Pa. 31, 202 A.2d 61 (1964), the landowners purchased property which was being used in clear violation of the zoning ordinance. Although the ordinance had been enforced as to that property for eleven years, the landowners gained no right to use their property in the unlawful manner. The court said that a simple check of the zoning status of the property would have revealed that the use was unlawful.

Significantly, as to the alleged misrepresentation and issuance of the permit, the trial court, relying on the testimony of the township's zoning officer, made findings contrary to the owners' allegations. The court found:

The Zoning Officer also informed Defendants' counsel that Defendants did not have a valid non-conforming use, he referred them to the proper section of the Zoning Ordinance, and told them to take this matter up with the Zoning

[ 72 Pa. Commw. Page 236]

Hearing Board or the Board of Supervisors. The Zoning Officer did not respond to further request by counsel to register the property as a non-conforming use.

Defendants were issued a building permit at the request of Defendants' general contractor in July, 1980, to construct a garage. The Building Officer issued this permit on the representation by Defendants [sic] employee that the garage was to be used for storage of agricultural and residential equipment.

A municipal permit issued upon a misrepresentation, thereby evidencing bad faith, does not confer a vested right. See Department of Environmental Resources v. Flynn, 21 Pa. Commonwealth Ct. 264, 344 A.2d 720 (1975), cited with approval in Petrosky v. Zoning Hearing Board of Upper Chichester Township, 485 Pa. 501, 402 A.2d 1385 (1979). Nor was the township guilty of laches where it acted in due diligence in indicating to the Bevans that their operation was illegal, and, subsequently, in initiating this action. See Taylor v. Township of Wilkens, 60 Pa. Commonwealth Ct. 65, 430 A.2d 1014 (1981).

Accordingly, we affirm the decision of the common pleas court.*fn16


Now, February 22, 1983, the order of the Court of Common Pleas of Bucks County dated February 9, 1982, No. 80-0350-11-5, is hereby affirmed.



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