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G. DAVID AUSTIN v. ZONING HEARING BOARD FORKS TOWNSHIP (08/23/85)

decided: August 23, 1985.

G. DAVID AUSTIN, ET AL., APPELLANTS
v.
ZONING HEARING BOARD OF FORKS TOWNSHIP, APPELLEE



Appeal from the Order of the Court of Common Pleas of Northampton County in the case of G. David Austin, et al. v. Zoning Hearing Board of Forks Township, No. 1983-C-5342.

COUNSEL

Karl H. Kline, with him, Joseph M. Reibman, Reibman and Reibman, for appellants.

Robert E. Simpson, Jr., Teel, Stettz, Shimer & DiGiacomo, Ltd., for appellee.

Judges Rogers, Barry and Palladino, sitting as a panel of three. Opinion by Judge Rogers. Judge Barry did not participate in the decision in this case.

Author: Rogers

[ 91 Pa. Commw. Page 357]

David G. Austin and Vicky K. Austin, husband and wife (appellants), have appealed from an order of the Court of Common Pleas of Northampton County affirming a decision of the Forks Township Zoning Hearing Board (board) which denied in part their application to expand a lawful nonconforming use.

The facts are not in dispute. The appellants own a three-acre parcel of land located along Pennsylvania Route No. 115, a major thoroughfare through Forks Township. There are two acres of apple trees on the tract. Prior to the enactment of the township's zoning ordinance, the appellants' predecessors in title established a business conducted in a garage located behind their dwelling house consisting of the sale of apples, apple cider, pears, cantaloupes, honey and flowers during the months of August through March or April. All of the products sold by the appellants' predecessors were either grown on the premises or produced from things grown on the premises. The township's zoning ordinance and map, enacted in 1968, places the subject property in the Medium Density Residential zoning district in which no commercial uses are permitted.

The appellants purchased the property in 1976 and continued the business of selling products grown on the premises or produced from things grown on the premises until the events about to be described.

In May, 1983, the appellants filed with the board an application*fn1 to expand their lawful nonconforming

[ 91 Pa. Commw. Page 358]

    use so that they might keep store hours from 8:00 a.m. to 9:00 p.m., seven days a week, twelve months a year, and expand the product line to include the delicatessen items of cold cuts, salads, specialty cheeses, baked goods and to include also wines produced at a local winery. This application may have been preceded by actual changes in the use of the property made without recourse to the township zoning authorities because the record made by the zoning hearing board reveals that the appellants have erected a sign at the roadside bearing the legend "Austins Orchard and Deli Now Open."

Turning to the Forks Township Zoning Ordinance, we find that "road-side stand" is defined at Section 374 as "an open or enclosed stand situated along the roadway for the purpose of selling farm produce grown on the premises." There are four residential districts, Rural, Low Density, Medium Density and High Density. Roadside stands are permitted only in the Rural Residential District. The use of the garage by the appellants' predecessors and by the appellants before the enactment of the zoning ordinance was as a roadside stand as defined by the zoning ordinance; that is, it was an open or enclosed stand for the purpose of selling farm produce grown on the premises, with the minor expansion established by the predecessors of selling a product or products produced from products grown on the premises, possibly a reference to cider. It was this use which became a lawful but nonconforming use when the zoning ordinance was enacted.

The words "deli" and "delicatessen" are not defined in the ordinance. A delicatessen is defined in the dictionary as a "store where ready-to-eat food products (as cooked or processed meats, cheeses, prepared salads, canned food, preserves, ...


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