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HAROLD J. EPTING AND MARGARET HELLINGER v. MARION TOWNSHIP ZONING HEARING BOARD AND MARION TOWNSHIP (10/22/87)

decided: October 22, 1987.

HAROLD J. EPTING AND MARGARET HELLINGER, APPELLANTS
v.
MARION TOWNSHIP ZONING HEARING BOARD AND MARION TOWNSHIP, APPELLEES



Appeal from the Order of the Court of Common Pleas of Berks County, in case of Harold J. Epting and Margaret Hellinger v. Marion Township Zoning Hearing Board and Marion Township, No. 425 May, 1985.

COUNSEL

Stephen B. Lieberman, with him, Barry W. Sawtelle, Lieberman & Rothstein, P.C., for appellants.

Charles F. Fitzpatrick, Miller and Murray, for Marion Township Zoning Hearing Board.

Gene M. Venzke, for intervenor, Marion Township.

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

Author: Doyle

[ 110 Pa. Commw. Page 390]

Harold J. Epting and Margaret Hellinger (Appellants) appeal from an order of the Court of Common

[ 110 Pa. Commw. Page 391]

Pleas of Berks County, which affirmed a decision of the Marion Township Zoning Hearing Board (Board) holding that Appellants could not lawfully place a mobile home on their property. We affirm.

Appellants own twelve acres of land in Marion Township (Township), which is used as a farm. Located on their property is at least one dwelling used as their residence and five other farm buildings. In 1976, Appellants added a separate mobile home to their property, a lawful use of their property at that time. A security guard, who worked part-time as a farmhand on the premises, lived in the mobile home. In 1979, Appellants' land was zoned A-R (Agricultural-Rural) and Appellants' principal residence as well as the mobile home were rendered nonconforming uses by this new zoning.*fn1 Sometime around March 1980, the mobile home was destroyed by fire.

After the fire, Appellants cleared debris from the site of the old mobile home, but took no other action. Appellants purchased a new mobile home on July 1, 1983, which was moved onto the premises on August 24, 1984. The mobile home was to be used to house Appellant Hellinger's daughter, child and fiance.

Appellants applied to the Board for a variance or a declaration that the use of their property constituted the continuation of a nonconforming use. The Board found

[ 110 Pa. Commw. Page 392]

    that Appellants were not entitled to a variance and that they had abandoned their nonconforming use.

Appellants appealed to the court of common pleas. During the course of proceedings before the trial court, the Appellants moved to strike the Board and its brief as a party to the appeal. Their motion was denied. The trial court also allowed the Township to intervene four months after the filing of Appellants' appeal. Subsequently, the trial court, without taking additional evidence, upheld the Board's determination that Appellants had abandoned their nonconforming use and were not entitled to a variance. The trial court, ...


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