Appeal from the Order of the Court of Common Pleas of Westmoreland County, in the case of Guy DiSalvo and Rita DiSalvo, his wife, v. Hempfield Township Zoning Hearing Board v. The Township of Hempfield, Philip L. Crimboli and Denise Crimboli, his wife, No. 4331 of 1983.
David J. Millstein, for appellants.
John M. Campfield, for appellees, Philip L. Crimboli et ux.
Judges Doyle, Palladino and McGinley, sitting as a panel of three. Opinion by Judge Palladino.
[ 118 Pa. Commw. Page 442]
Guy and Rita DiSalvo (Appellants) appeal from a decision of the Court of Common Pleas of Westmoreland County ordering them to reduce the height of a stockade fence on their property to 42 inches and to finish the fence on both sides in a similar fashion. We affirm.
Appellants, in 1983, constructed a pool, bathhouse, and a fence, varying in height from 8 to 10 feet, on their property in Hempfield Township without obtaining a building permit. The Township's zoning officer informed Appellants that the bathhouse and fence violated the Township's setback requirements for accessory uses. Appellants then sought a variance from the Township Zoning Hearing Board (Board) for the bathhouse and an interpretation of the Township Zoning ordinance as it applied to fences.
The Board granted the variance for the bathhouse. The Board determined that the fence was an accessory use and that portions of the fence violated the setback requirements for front and sideyards. The Board concluded that appropriate action should be taken to correct the violations. Appellants appealed this decision to the trial court. Philip and Denise Crimboli, adjacent property owners, (Intervenors) and the Township intervened. The trial court, on June 11, 1984, affirmed the grant of the variance and the front yard setback requirement for the fence but reversed as to the sideyard setback. Appellants and Intervenors filed timely appeals to
[ 118 Pa. Commw. Page 443]
this court. Appellants withdrew their appeal on September 28, 1984. This court subsequently affirmed the trial court.*fn1
On November 13, 1985, Intervenors petitioned the trial court for a rule to show cause why Appellants should not be held in contempt of the trial court's June 11, 1984 order because Appellants had withdrawn their appeal but had not complied with the trial court's order. The trial court issued a rule to show cause and a hearing was held January 30, 1986. On August 11, 1986 the trial court issued its decision.
The trial court concluded that Appellants should not be held in contempt because, while both the Board and the trial court held that the fence was erected in violation of the Township's zoning ordinance and should be removed, Appellants had not been specifically directed to remove the fence. The trial court then clarified its original order and directed Appellants to remove that portion of the fence which was in violation. Appellants sought reconsideration of this order, asking the trial court to reconsider its order in light of the Township's adoption of a new fence ordinance. Reconsideration was expressly granted by order of the trial court dated August 27, 1986.*fn2
A hearing was held September 8, 1986. The trial court, in response to Intervenors' objection to reconsideration, stated that it had granted reconsideration for the sole purpose of considering whether or not a ...