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APPEAL MASON A. CRAWFORD AND JOY CRAWFORD (10/02/87)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: October 2, 1987.

IN RE: APPEAL OF MASON A. CRAWFORD AND JOY CRAWFORD, H/W FROM THE DECISION OF THE UPPER SOUTHAMPTON TOWNSHIP ZONING HEARING BOARD. MASON A. CRAWFORD AND JOY CRAWFORD, HIS WIFE, APPELLANTS

Appeal from the Order of the Court of Common Pleas of Bucks County, in case of In Re: Appeal of Mason A. Crawford and Joy Crawford, his wife, from the decision of the Upper Southampton Township Zoning Hearing Board, No. 84-04554-09-1.

COUNSEL

Edward F. Murphy, with him, Caroline F. Achey, McBride and Murphy, for appellants.

William Terwilliger, Pro Se, with him, Elizabeth Terwilliger, for appellees.

Judges Craig and Doyle, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 110 Pa. Commw. Page 52]

Mason Crawford and his wife (Appellants) appeal from an order of the Court of Common Pleas of Bucks County, which affirmed an order of the Upper Southampton Township Zoning Hearing Board (Board) denying Appellant's request for a variance by estoppel. We affirm.

In 1955, Appellants bought a one-and-one-quarter acre lot in Upper Southampton Township (Township)

[ 110 Pa. Commw. Page 53]

    zoned R-2 residential in order to construct a residence for themselves and their family. Mr. Crawford was a masonry contractor. He used the property to store materials for his business. Upon the completion of his residence in 1958, Mr. Crawford conducted his contracting business, which had become a full-time operation, from his home via telephone. Mr. Crawford at that time employed a part-time secretary and members of his family in the business. He used his home and garage to store business records, tools, other equipment and small amounts of building materials. From 1955 through at least 1965, many of Mr. Crawford's neighbors also operated construction contracting businesses out of their homes in a similar manner.

Mr. Crawford's ability to work as a masonry contractor became impaired, however, due to a back ailment. He then began specializing in commercial caulking for home builders. Since 1965, Mr. Crawford has been exclusively in the caulking business and has employed as many as nine workers and utilized as many as six vans. Generally, the tools and equipment for this business, as well as most of the 55-gallon drums of caulk, were stored in Appellants' three-car garage. He stored his ladders outside, however, and, in warm weather he also stored the 55-gallon drums of caulk outside. One or more of the vans used in Mr. Crawford's business were always parked in the driveway of his residence.

Mr. Crawford constructed a storage shed and an addition to the garage, both of which he used for business purposes. He also erected fencing and planted extensive shrubbery in order to minimize the impact of the business operation upon his neighbors.

There were no complaints regarding Mr. Crawford's business until 1972. In that year, William Terwilliger, Appellants' neighbor, complained to the Township manager, John Danenberger. The Township took no action

[ 110 Pa. Commw. Page 54]

    on that complaint. By 1982, however, most of the neighbors were complaining of Mr. Crawford's activities because tractor-trailer trucks were delivering drums of caulk to his residence. Appellants' neighbors further complained about the sounds of vehicle doors slamming, workmens' voices, and cans and ladders occasionally being dropped in the early morning hours. In response to his neighbors' complaints, Mr. Crawford discontinued deliveries to his home, but on October 3, 1983, the Township's zoning officer issued a cease-and-desist order, directing the Appellants to cease operation of Mr. Crawford's business on the subject property.*fn1

Subsequently, on October 27, 1983, Appellants filed for a use variance on the basis of hardship and/or estoppel. Following a hearing, the Board denied Appellants' application on both grounds. Appellants appealed to the court of common pleas only that portion of the Board's decision denying them a variance by estoppel. The trial court, without taking additional evidence, affirmed the Board's order. This appeal followed.*fn2

The case law regarding the theory of variance by estoppel, or vested rights, as it is often called, has not produced a clearly articulated test for determining

[ 110 Pa. Commw. Page 55]

    when it becomes inequitable to enforce a particular zoning restriction against a landowner. We have found in the past, however, a number of factors relevant in making this determination. One factor is a long period of municipal failure to enforce the law, when the municipality knew or should have known of the violation, in conjunction with some form of "active" acquiescence in the illegal use.*fn3 What is well-settled is that a mere showing that a municipality has failed to enforce the law for a long period of time is insufficient in itself to support the grant of a variance.*fn4

[ 110 Pa. Commw. Page 56]

Another relevant factor in the estoppel analysis is whether the landowner acted in good faith and relied innocently upon the validity of the use throughout the proceedings.*fn5 But in assessing whether a landowner's reliance upon municipal inaction is reasonable, a landowner is, absent some municipal validation of the use, "duty bound to check the zoning status of the property before purchase." Hasage v. Zoning Board of Adjustment, 415 Pa. 31, 35, 202 A.2d 61, 64 (1964).*fn6

A third relevant factor is whether the landowner has made substantial expenditures in reliance upon his belief that his use was a permitted use. Department of Environmental Resources v. Flynn, 21 Pa. Commonwealth Ct. 264, 344 A.2d 720 (1975).

A fourth factor is whether the denial of the variance would impose an unnecessary hardship on the applicant, such as the cost to demolish an existing building. Klanke v. Zoning Board of Adjustment, 83 Pa. Commonwealth Ct. 441, 477 A.2d 907 (1984); see also Township of West Pikeland v. Thornton, 106 Pa. Commonwealth Ct. 560, 527 A.2d 174 (1987).

We may also consider whether there is sufficient evidence to show that the use is a threat to the public health, safety or morals.*fn7

[ 110 Pa. Commw. Page 57]

Appellants contend that they have met the first criterion because various Township officials knew Mr. Crawford operated a business out of his home. The record in this case indicates that both the Township tax assessor and the Township building inspector in 1955 knew that Mr. Crawford was engaged in the construction business on the premises, and that other township officials at later dates had the same knowledge. The record further indicates that John Danenberger, a man who served in many Township positions*fn8 and had some responsibility in upholding and enforcing the Township zoning ordinances, knew of Mr. Crawford's business and did nothing. While the evidence adduced by Appellants shows that municipal officials knew of the violation, it does not show that the Township " actively " acquiesced in Appellants' use. We can find no case decided by our Supreme Court or this Court where pure municipal failure to take action, even coupled with some knowledge of the violation by municipal officials, was held sufficient to grant a variance by estoppel. Indeed, in several cases we have held to the contrary.*fn9 In the case presently before this Court, there was no erroneously issued permit upon which the Appellants relied as in Spica, nor any other municipal action upon which Appellants could

[ 110 Pa. Commw. Page 58]

    reasonably rely. There was no " active " acquiescence by the Township in this case.

Moreover, Appellants' reliance on the Township's inaction was not reasonable. As we have stated previously, a purchaser of property is duty-bound to check the property's zoning status, Hasage, and the failure to do so and the resulting lack of knowledge cannot be advanced in support of a variance. Klanke. One who commences a use without inquiry into whether it is permitted by the municipality's zoning ordinance does so at his own peril.

Last, although Appellants have expended substantial funds in improving their home, they would suffer no hardship if the variance were denied. The garage, shed and other improvements Appellants have erected on the property are consistent with the permitted residential use. Appellants have not, therefore, established an unnecessary hardship. Klanke; Thornton.

Accordingly, the order of the Court of Common Pleas of Bucks County is affirmed.

Order

Now, October 2, 1987, the order of the Court of Common Pleas of Bucks County, No. 84-04554-09-1, dated April 17, 1986, is hereby affirmed.

Disposition

Affirmed.


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