Appeal from the Order of the Court of Common Pleas of Chester County in the case of In Re: Appeal of Gerald J. Schneider and Patricia P. Schneider, his wife, No. 84-02090.
Glenn R. Diehl, with him, W. Robert Landis, W. Robert Landis Associates, P.C., for appellants.
Joseph E. Brion, Lachall, Brion, Cohen & Lawson, for appellees.
Judges Craig and Doyle, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Doyle.
[ 104 Pa. Commw. Page 220]
Gerald J. Schneider and his wife Patricia P. Schneider (Appellants) appeal from an order of the Court of Common Pleas of Chester County affirming a decision of the Zoning Hearing Board (ZHB) of West Whiteland Township (Township), which upheld the issuance by the Township's zoning officer of a use-and-occupancy permit to George Pegler. We affirm.
In October 1983, Pegler and his wife entered into an agreement of sale to purchase a tract of land (1.4 acres) in the Township from Franklin Funderwhite, including a garage erected thereon. Since 1951, Funderwhite operated a general trucking, hauling, storage and repair business on the property, during the course of which Funderwhite stored numerous tractors, trailers and dump trucks on the property. The garage was built in 1971, before adoption of the present Township zoning ordinance, and Funderwhite received a use-and-occupancy permit from the Township allowing him to store and repair trucks in the garage. Funderwhite's use of the property became a prohibited use following the adoption of the present Township Zoning Ordinance (Ordinance) in 1973, but it is undisputed that at that time, his use of the property constituted a lawful pre-existing nonconforming use under the Ordinance.
Pegler is engaged in the trash hauling business in Chester County, and entered into the agreement of sale for the property in order to store his empty trash trucks on the property and repair them in the garage. Following an application by Pegler, the Township in November 1983 issued him a use-and-occupancy permit allowing the "repair and storage of trash trucks and equipment" on the property, subject to a number of detailed conditions.
Appellants as abutting landowners timely appealed to the ZHB from the issuance of the permit. In February
[ 104 Pa. Commw. Page 2211984]
the ZHB affirmed the issuance of the permit,*fn1 finding, inter alia, that Pegler's proposed use of the property was not a different nonconforming use than that of Funderwhite, and therefore was not proscribed by the Ordinance.*fn2 Appellants appealed to the Court of Common Pleas of Chester County. The Court took no additional evidence and affirmed the ZHB. From this, Appellants appealed to this Court.*fn3
We are mindful that the law disfavors nonconforming uses, and that there is no constitutional right to change one nonconforming use to another. Hanna v. Board of Adjustment, 408 Pa. 306, 183 A.2d 539 (1962); Atlantic Richfield Co. Appeal, 77 Pa. Commonwealth Ct. 310, 465 A.2d 1077 (1983). There is, however, a protected right to continue a lawful nonconforming use. Grace Building Co., Inc. v. Zoning Hearing Board of Allentown, 38 Pa. Commonwealth Ct. 193, 392 A.2d 892 (1978).
Accordingly, the sole issue before us is whether Pegler's proposed use of the property is a continuation of a prior, lawful ...