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OTTO BACHMAN v. ZONING HEARING BOARD BERN TOWNSHIP (07/03/85)

decided: July 3, 1985.

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



No. 132 E.D. Appeal Dkt. 1984, Appeal from the Order of the Commonwealth Court at No. 1830 C.D. 1982, filed April 25, 1984, affirming the Order of the Court of Common Pleas of Berks County, filed June 28, 1982, at No. 283 March Term, 1980, Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen, J., files a dissenting opinion. Flaherty, J., files a dissenting opinion, in which Larsen and Papadakos, JJ., join.

Author: Mcdermott

[ 508 Pa. Page 182]

OPINION

In 1951, appellant purchased approximately forty acres of land in Bern Township, Berks County. When he acquired the land there were eight bungalows, one farm house, and two sheds, occupying approximately two of the forty acres. Near the existing structures he added one bungalow in 1953 and another in 1954. He made improvements to the bungalows in the form of access roads, sewers, water lines, and electricity. Appellant used the farm house as a summer residence and rented the bungalows for both year-round and summer use.

In 1976, appellant conveyed to the United States, by deed in lieu of condemnation, almost thirty-two acres of his land, to be used by the government for its Blue Marsh dam project. Appellant retained salvage rights to the bungalows and in the summer of 1977, without benefit of building or zoning permits, he moved the bungalows to his remaining eight acres. Prior to that time those eight acres contained no structures of any kind.

Appellant was notified in 1978 that the existence of the bungalows violated the township's zoning ordinance. His subsequent application for a zoning permit was denied by the township's zoning officer.*fn1 His appeal of that denial was dismissed by the township's zoning hearing board. That dismissal was affirmed both by the Court of Common Pleas of Berks County 29 Pa.D & C 3d 184, and by the Commonwealth Court. 82 Pa. Commw. 51, 474 A.2d 406 (1984).

[ 508 Pa. Page 183]

When Bern Township's zoning ordinance was adopted in 1973, appellant's forty acres were designated "Institutional/Recreational." The following uses were permitted in an Institutional/Recreational District:

     a. Churches, chapels, convents, monasteries, or other places of worship and their adjunct residential dwellings;

     b. Medical or surgical hospitals, medical center, sanitaria (including those for contagious diseases), and charitable institutions;

     c. Rest or convalescent homes, including homes for aged or infirm;

     d. Schools, colleges, universities, and other institutions of learning, adjunct dormitories, and adjunct play and recreational grounds or facilities;

     e. Art galleries, museums, libraries, court-house buildings and community centers;

     f. Public lands, game preserves and conservatories;

     g. Parks, golf courses and other recreational land.

Bern Township Ordinance No. 26-1973, art. XIII, ยง 1301. Appellant's structures were not permitted in such a district except as a pre-existing use.

The board found, after a hearing, that appellant had a valid nonconforming use as long as his bungalows were confined to the part of the property on which the bungalows were located prior to 1977. The board also found that the pre-existing use was never enlarged or expanded to include the eight acres of land retained by appellant. Thus, the board concluded that the nonconforming use was destroyed upon the conveyance of ...


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