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BLUE VALLEY QUALITY EGGS v. ZONING HEARING BOARD WASHINGTON TOWNSHIP AND RALPH SHELTON AND RUTH M. SHELTON (10/12/89)

decided: October 12, 1989.

BLUE VALLEY QUALITY EGGS, INC., APPELLANT,
v.
THE ZONING HEARING BOARD OF WASHINGTON TOWNSHIP AND RALPH SHELTON AND RUTH M. SHELTON, APPELLEES



Appeal from Common Pleas Court, Northampton County; Honorable Michael V. Franciosa, Judge.

COUNSEL

Thomas R. Elliott, Jr., Poswistilo, Elliott & Elliott, Easton, for appellant.

William H. Agnew, Nazareth, for appellee, Zoning Hearing Bd. of Washington Tp.

Colins and Smith, JJ., and Barbieri, Senior Judge.

Author: Colins

[ 129 Pa. Commw. Page 107]

Blue Valley Quality Eggs, Inc. (appellant) appeals an order of the Court of Common Pleas of Northampton County which affirmed the decision of the Zoning Hearing Board of Washington Township (Board) denying appellant's application for a special exception to change from one nonconforming use to another nonconforming use.

The appellant operated a commercial chicken egg growing facility in Washington Township, which predated the 1979 enactment of the Township Zoning Ordinance. The Township's ordinance allowed the egg growing facility to continue, since the structure and lot size existed as of the ordinance adoption date. The ordinance requires a minimum 5 acre lot and 150-foot setback requirement for structures in an agricultural zone. Appellant's lot is only 3.57 acres and the structure on the lot does not meet the setback requirements.

In 1987, the commercial production of eggs was no longer desirable to appellant and it sought to convert the egg hatching facility into self-storage units. Appellant began the conversion without the necessary approval and the Township issued a cease and desist order. Appellant then sought a special exception to change from one nonconforming use to another nonconforming use. The Board, after a hearing, denied the application. The trial court affirmed the denial. This appeal followed.

The only issue before this court is whether an otherwise permitted use, conducted within a nonconforming structure and on a nonconforming lot, results in a per se, nonconforming use. The trial court did not take any additional

[ 129 Pa. Commw. Page 108]

    evidence. Therefore, our scope of review will be limited to a determination of whether the Board committed a manifest abuse of discretion or an error of law. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983). The appellant argues that it is entitled to a special exception because at all times the egg-growing operation was a nonconforming use on a nonconforming lot within a nonconforming structure. Therefore, appellant contends that it has a qualified right under the ordinance to change from one nonconforming use to another. The ordinance lists the following types of nonconformity:

2.1(B)(89) Nonconforming Lot. A lot which does not conform with the minimum lot width, or area dimensions specified for the district where such lot is situated, but was lawfully in existence prior to the effective date of this Ordinance or is legally established through the granting of a variance by the Board. Contiguous nonconforming lots under common ownership shall be considered one (1) lot.

2.1(B)(90) Nonconforming Structure. A structure which could not be built under this Ordinance by reason of restrictions on area, lot coverage, height, yards, or other characteristics of the structure or its location on the lot, but was ...


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