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OTTO BACHMAN v. ZONING HEARING BOARD BERN TOWNSHIP (04/25/84)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: April 25, 1984.

OTTO BACHMAN, APPELLANT
v.
THE ZONING HEARING BOARD OF BERN TOWNSHIP, APPELLEE

Appeal from the Order of the Court of Common Pleas of Berks County in the case of Otto Bachman v. The Zoning Hearing Board of Bern Township, No. 283 March 1980.

COUNSEL

Paul T. Essig, for appellant.

Scott L. Huyett, with him Stephen Welz, for appellee and intervenors.

Judges Rogers, Williams, Jr. and Barbieri, sitting as a panel of three. Opinion by Judge Barbieri.

Author: Barbieri

[ 82 Pa. Commw. Page 52]

Otto Bachman (Appellant) appeals here from an order of the Court of Common Pleas of Berks County which affirmed a decision of the Zoning Hearing Board of Bern Township (Township) denying Appellant's request to relocate his nonconforming use to an unused portion of his land.

In 1951, Appellant purchased a 40 acre tract of land in Bern Township which had upon it eight bungalows, two sheds and a frame farm building. In 1953 and 1954, Appellant added two bungalows to the land. All of these structures were rented as residences, with Appellant residing himself in the frame farm building. All of the buildings were located on approximately two of the 40 acres owned by Appellant. In 1973, the Township enacted a zoning ordinance which prohibited single family residences in the area wherein the Appellant's property was located. Consequently, the use of the buildings on Appellant's land became a valid nonconforming use.

In 1976, Appellant conveyed to the United States Government, by a deed in lieu of condemnation, approximately 32 of his 40 acres, which acreage included the land on which Appellant's buildings were located. Appellant obtained salvage rights to the buildings, however, and proceeded to relocate the buildings to that part of the tract not conveyed to the United States Government. In 1978, Appellant was notified by the Township that the use of his land was in violation of the Township's ordinance. Appellant consequently applied for a permit which was denied by the Township's zoning officer and an appeal was then taken to the Township's zoning hearing board. The Board dismissed Appellant's appeal on the ground that the nonconforming use which predated the Township's ordinance, was "destroyed" by the deed in lieu of condemnation, and that the nonconforming use

[ 82 Pa. Commw. Page 53]

    could not be transferred to another part of the land not previously devoted to such nonconforming use. The Appellant appealed to the common pleas court, which affirmed the Board's decision and the present appeal followed.

The order of the Court of Common Pleas of Berks County dismissing Appellant's appeal from the Zoning Hearing Board of Bern Township is affirmed on the clear and comprehensive opinion of Judge W. Richard Eshelman reported as Otto Bachman v. The Zoning Board of Bern Township, 29 D. & C.3d 184 (1984).

Order

And Now, this 25th day of April, 1984, the order of the Court of Common Pleas of Berks County, dated June 28, 1982, at No. 283 March 1980, is affirmed.

Disposition

Affirmed.

19840425

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