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CENTER TOWNSHIP v. ZONING HEARING BOARD CENTER TOWNSHIP. GLENN FELSING V. ZONING HEARING BOARD CENTER TOWNSHIP. GLENN FELSING (03/10/87)

decided: March 10, 1987.

CENTER TOWNSHIP
v.
THE ZONING HEARING BOARD OF CENTER TOWNSHIP. GLENN FELSING V. THE ZONING HEARING BOARD OF CENTER TOWNSHIP. GLENN FELSING, APPELLANT



Appeal from the Order of the Court of Common Pleas of Butler County in the case of Center Township v. The Zoning Hearing Board of Center Township, A.D. No. 83-593, and in the case of Glenn Felsing v. The Zoning Hearing Board of Center Township, A.D. No. 83-618.

COUNSEL

Lawrence P. Lutz, with him, Alexander H. Lindsay, Jr., Lindsay & Lutz, P.C., for appellant.

Charles F. Flach, III, Murrin, Taylor, Flach & Horan, for appellee, Center Township.

Judges MacPhail, Doyle and Colins, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 104 Pa. Commw. Page 488]

Glenn Felsing has appealed from an Order of the Court of Common Pleas of Butler County, which reversed the decision of the Center Township Zoning Hearing Board (Board) and denied Felsing a variance by estoppel.

The facts are not in dispute. Felsing purchased ten acres of land in Center Township (Township) from Albert McCandless, who was a Township Supervisor at the time. Felsing, after purchasing the land, asked McCandless what uses were legal, and McCandless indicated that basically any use was legal. On May 1, 1971, the Township's zoning ordinance became effective and placed Felsing's property in an R-1 residential district. On or about May 29, 1971, Felsing was issued a building permit for a residential building, which was built on the tract in 1973. Shortly thereafter, Felsing began machining gun parts in the basement of his home for his off-premises gun shop. In 1974, while negotiating with McCandless for the purchase of an additional four

[ 104 Pa. Commw. Page 489]

    acres of land, Felsing again asked McCandless about the uses permitted and, specifically, whether he could operate a machine shop. Again McCandless assured Felsing that such use was legal. In late 1975 or early 1976, Felsing went out of the gun business and began to operate a machine shop full-time in his home. In 1978, he applied for a building permit to erect a garage on the premises. The use listed on the building permit was a residential garage.*fn1 Shortly after the construction of the garage, Felsing began moving his equipment into it and it is now used to house a machine shop, which is Felsing's full-time business.

In October 1982, the Township passed an ordinance requiring home occupation permits. Felsing applied for a permit in December 1982 and was informed by letter dated July 13, 1983 from the Township's zoning officer that his machine shop use was in violation of the zoning ordinance, that he did not qualify for a home occupation permit, and that he had thirty days to terminate his operation or to relocate it.

Felsing appealed to the Board. Following a hearing, the Board issued a decision overruling the zoning officer's decision and concluding that Felsing had a legal right to maintain his machine shop at its present location "due to circumstances present at the time of its inception." The Board also set two conditions on Felsing's continued use of the premises as a machine shop, notably, that the business could not expand beyond its present physical location, and that the business could

[ 104 Pa. Commw. Page 490]

    not be sold at its present location to anyone other than a member of ...


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