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JAMES E. LOCKWOOD v. ZONING HEARING BOARD MILLCREEK TOWNSHIP (04/15/88)

decided: April 15, 1988.

JAMES E. LOCKWOOD, APPELLANT
v.
THE ZONING HEARING BOARD OF MILLCREEK TOWNSHIP, APPELLEE



Appeal from the Order of the Court of Common Pleas of Erie County, in the case of James E. Lockwood v. The Zoning Hearing Board of Millcreek Township, No. 669-A-1984.

COUNSEL

Randy L. Shapira, Plate, Shapira, Hutzelman, Berlin, May, Walsh and Brabender, for appellant.

Richard W. Perhacs, Elderkin, Martin, Kelly, Messina & Zamboldi, for appellee.

Judges Craig, Smith, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.

Author: Narick

[ 115 Pa. Commw. Page 369]

This is an appeal by James E. Lockwood (Appellant) from a decision of the Court of Common Pleas of Erie County affirming a decision of the Millcreek Township Zoning Hearing Board (Board). We affirm.

Appellant has an interest in property located in Millcreek Township, Erie County, Pennsylvania.*fn1 This property has been used as a trailer park for approximately twenty years and the record reveals that there are currently thirteen or fourteen trailers located on the property. Appellant made a request to the Board for a variance from the fifteen feet sideyard setback requirement of the Millcreek Township Zoning Ordinance (Ordinance). The record discloses that in 1964 this setback regulation was increased from six feet to fifteen feet. Appellant is not in compliance with either the six feet or the fifteen feet setback regulation. Also, four trailers in the park extended over Appellant's property line onto the property of the adjacent owner. Appellant agreed to remove these four trailers so that they would be located only on his property; but, despite this effort, Appellant is still in violation of the Ordinance's setback requirements.

[ 115 Pa. Commw. Page 370]

An evidentiary hearing was conducted and some opposition to Appellant's variance was expressed by neighboring property owners. The Board decided to grant a "de minimis" variance and allow Appellant to locate the trailers in the park no more than three feet from the property line. Appellant appealed to the court of common pleas contending that the Township had knowledge of Appellant's setback regulation violation and because it failed to enforce the Ordinance, the Township is estopped from denying the variance. The trial court affirmed the Board. Thus, the trial court's order affirming the Board requires Appellant to remove six trailers from his property.

Appellant argues on appeal that the Township is estopped from denying his variance request. We will consider Appellant's argument keeping in mind that when reviewing a zoning appeal where the trial court has taken no additional evidence beyond that presented to the zoning hearing board, our scope of review is limited to a determination of whether the zoning hearing board committed a manifest abuse of discretion or an error of law. Valley View Civic Association v. Zoning Hearing Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983). We may conclude that the zoning hearing board abused its discretion if its findings are not supported by substantial evidence. Id.

In order for a property owner to establish that he is entitled to a variance by estoppel or a vested right the following must be established: (1) a long period of municipal failure to enforce the law; (2) that the municipality knew or should have known of the violation, in conjunction with some form of active acquiescence in the illegal use; (3) reliance by the landowner upon the validity of the use created by the action or inaction of the municipality; and (4) that the denial of the variance would result in unnecessary hardship. Appeal of Crawford,

[ 115 Pa. Commw. Page 371110]

Pa. Commonwealth Ct. 51, 531 A.2d 865 ...


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