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ROBERT HOSFORD v. ZONING HEARING BOARD PENN TOWNSHIP. JAMES H. AND ANNA C. PAXSON AND JAMES H. PAXSON (11/12/87)

decided: November 12, 1987.

ROBERT HOSFORD
v.
ZONING HEARING BOARD OF PENN TOWNSHIP. JAMES H. AND ANNA C. PAXSON AND JAMES H. PAXSON, INC. V. ZONING HEARING BOARD OF PENN TOWNSHIP. JAMES H. AND ANNA C. PAXSON AND JAMES H. PAXSON, INC., APPELLANTS



Appeal from the Order of the Court of Common Pleas of Chester County in the case of Robert Hosford v. Zoning Hearing Board of Penn Township, No. 84-06682, and James H. and Anna C. Paxson and James H. Paxson, Inc. v. Zoning Hearing Board of Penn Township, No. 84-06799.

COUNSEL

Patrick C. O'Donnell, with him, John E. Good, for appellants.

John H. Spangler, Parke, Barnes, Spangler & Bortner, for appellee.

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

Author: Doyle

[ 111 Pa. Commw. Page 66]

James H. Paxson, his wife, and James H. Paxson, Inc. (Appellants) appeal from an order of the Court of Common Pleas of Chester County, which reversed a decision of the Zoning Hearing Board of Penn Township (Board) granting Appellants a building permit. We affirm.

James H. Paxson and his wife purchased a 34.6 acre tract of land in Penn Township (Township) in 1970.*fn1 The Township previously had zoned the property R-2 Residential in 1968. Under the Township Zoning Ordinance, agricultural uses were permitted in a R-2 zone, but a truck terminal was not. Appellants' primary business is that of hauling mushrooms. The property involved in this case has been used by Appellants since at least 1974 as a staging area for the trucks used in their business. Appellants' business operates in the following manner. Drivers employed by Appellants use pick-up or van-type trucks to secure mushrooms from local growers. These drivers then take the mushrooms to Mushroom Express*fn2 for refrigeration and storage. Shortly thereafter, Appellants' tractor-trailers pick up Appellants' mushrooms from Mushroom Express and deliver them to market.

By 1976, Appellants were operating twelve trucks of various types and employed thirty people. In that year, neighboring landowners, Mr. and Mrs. Robert Hosford, alarmed at the increase in the size of the trucking business on the property, complained about Appellants' use of the property to the Township Board of Supervisors (Supervisors). The Supervisors apparently instructed

[ 111 Pa. Commw. Page 67]

    the Township zoning officer to investigate the matter, and he reported back to them on or about October 4, 1976. A review of the minutes of the Supervisors' meeting held on that date reveals the following relevant excerpt:

At this time the Zoning Officer was instructed to send a letter to Mr. Hosford about the Paxson zoning complaint. The complaint was that Mr. Paxson is operating a truck terminal. It appears that the use presently existing on the Paxson premises is a non-conforming use under the Penn Township Zoning Ordinance of 1968. The zoning ordinance permits the continuation of pre-existing non-conforming uses and establishes procedures that will be employed to control their future expansions. However, you should note that the present use can be expanded pursuant to these procedures. Accordingly, the Board of Supervisors after hearing the zoning officer's report, finds that the present use is in accord with the law and no further action is anticipated at this time.

Pursuant to the instructions of the Supervisors, the zoning officer, on October 11, 1976, sent the following letter to Mr. and Mrs. Hosford:

Pursuant to your request, the Zoning Officer of Penn Township has investigated your complaint regarding the existence of a ...


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