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CARL CAPORALI AND KATHY L. CAPORALI v. JACK WARD (06/03/85)

decided: June 3, 1985.

CARL CAPORALI AND KATHY L. CAPORALI, HIS WIFE, APPELLANTS
v.
JACK WARD, EDWARD MIKOLAS AND CLARK MONTGOMERY, MEMBERS OF THE WINFIELD TOWNSHIP ZONING HEARING BOARD, APPELLEES



Appeal from the Order of the Court of Common Pleas of Butler County in case of Carl Caporali and Kathy L. Caporali, his wife v. Jack Ward, Edward Mikolas and Clark Montgomery, Members of the Winfield Township Zoning Hearing Board, No. 82-613, Book 122, Page 291.

COUNSEL

Robert J. Stock, for appellants.

Richard W. Givan, for appellees.

Judges Craig, Barry and Colins, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 89 Pa. Commw. Page 622]

This is an appeal from an order of the Court of Common Pleas of Butler County upholding a decision of the Winfield Township Zoning Board (Board).

Appellants, Carl and Kathy Caporali, are the next door neighbors of Patrick and Noreen Real who are not direct parties to this appeal.*fn1 On October 23, 1980, the Reals purchased a house with a barn situated on eight acres of land in Winfield Township. The property is located in an area which was entirely farmland until it was zoned residential in 1970. Because their children suffer from severe food allergies, the Reals were interested in buying a home in an area where they would be able to raise farm animals and grow

[ 89 Pa. Commw. Page 623]

    their own food. Seeking assurance that this particular property could indeed be used in this manner, they consulted the Winfield Township Zoning Officer who, in turn, advised them to get a ruling from the Winfield Township Planning Commission (Planning Commission). At a meeting held on September 2, 1980, the Planning Commission granted the Reals permission to keep certain farm animals on the property. This decision was based on a continuing non-conforming use theory.

Shortly thereafter the Reals purchased the property and moved in with their farm animals. Almost a year later, appellants complained to the township supervisors about the smell emanating from the Reals' property and an increased number of flies. An investigation ensued and, on April 27, 1982, the zoning officer ordered the Reals to remove all their animals, except four chickens. The Reals filed an appeal with the Board. Appellants also appealed the action allowing the four chickens.

The Board found that the present agricultural use was merely a continuation of farming operations which had been carried out on the property for the last fifty years and it, therefore, upheld the non-conforming use which had been found by the Planning Commission. This decision was appealed and because the trial court received additional evidence, it decided the case de novo. In reaching its decision, the Board had credited the testimony of several witnesses who stated that prior owners had farmed the land and maintained livestock on it until 1979. During the hearing before the trial court, however, appellant introduced into evidence a deposition by Mrs. Heim, the prior owner,*fn2

[ 89 Pa. Commw. Page 624]

    which clearly established that the non-conforming farm use had ceased, at a minimum, for a period in excess of two years.*fn3 Mrs. Heim testified that there had been no livestock on the property since the early 1970's. She explained that she did own two chickens for a very short time but they were kept in the house as pets. Based on this testimony, the trial court held that a non-conforming use had not been established. However, the trial court also held that the Reals were entitled ...


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