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07/10/97 BOROUGH LATROBE v. P. BRET POHLAND

July 10, 1997

THE BOROUGH OF LATROBE
v.
P. BRET POHLAND, CARYL A. POHLAND, HIS WIFE AND BRET JOHN POHLAND, R. SCOTT SHEARER AND KAREN A. SHEARER, P. BRET POHLAND, CARYL A. POHLAND, HIS WIFE AND BRET JOHN POHLAND, APPELLANTS



Appealed From No. 5111 of 1995. Common Pleas Court of the County of Westmoreland. Judge LOUGHRAN.

Before: Honorable Jim Flaherty, Judge, Honorable Bonnie Brigance Leadbetter, Judge, Honorable Silvestri Silvestri, Senior Judge. Opinion BY Judge Flaherty. Judge Leadbetter Dissents.

The opinion of the court was delivered by: Flaherty

OPINION BY JUDGE FLAHERTY

FILED: July 10, 1997

P. Bret and Caryl A. Pohland (Pohlands) appeal from an order of the Court of Common Pleas of Westmoreland County (trial court) permanently enjoining the Pohlands and their agents from conducting any commercial activity including the planting, cultivation, harvesting, heading or transportation of the flowers on the property at their residence for use in the business conducted by the wife petitioner. We affirm.

The factual background of this case is undisputed by the parties. In 1985, the Pohlands moved into their residence at 904 Hamilton Avenue in the Borough of Latrobe (Borough) in the same R-1 Single Family Residential Zone as their previous residences where Mrs. Pohland for at least eight years grew flowers with the help of only her husband and made them into the framed flowers which were sold off the premises. Although the Borough's Zoning Ordinance at all pertinent times prior to 1991 prohibited business usage, the Pohlands performed such activity without interference as it was considered a home vocational hobby and not a business. (Tr. Ct. Op. at 2.)

In 1991, however, they hired their first employee and eventually added until five to eight employees were engaged in just the planting through harvesting facets of the business and eight to twelve in the entire operation. The growth of the business is evident also from the increase in gross revenues from $293,191 in 1992 to $747,841 in 1995. Unfortunately for the Pohlands, their spirit of free enterprise also manifested itself with the appearance of the accoutrements necessary for their small industry, e.g. additional personnel with their vehicles visibly parked nearby, etc., which attracted the attention of neighbors who apparently alerted the Zoning Officer to the type of activity occurring.

The process of manufacturing the craft items which were sold consisted of planting, cultivation, heading, pressing and framing the flowers under glass with calligraphy notations beneath the flowers and finally the sale of the end products as craft items. On April 27, 1994, the Pohlands received a Notice of Zoning Violation/Cease and Desist Order (First Notice) from the Borough's Zoning Officer, which stated, inter alia, the following:

It has been determined that you are operating a business at your premises . . . . It is the understanding of this office that the business consists of making craft items, with employees coming upon the premises to perform this activity. Please be advised that . . . [your] property is located in an R-1, Single Family Residential Zone in which no business usage is permitted. . . .

(R., Plaintiff's Ex. 2 at 1)(emphasis in original). The First Notice continued by stating that: "enclosed [is] a copy of the applicable provision of the Latrobe Borough Zoning Ordinance outlining the permitted uses for your premises" and "all business activity must cease no later than ten (10) days from receipt of this letter." The First Notice additionally explained that legal action would be taken if business activity continued, and it set forth possible penalties for noncompliance and explained that the Pohlands had a right to appeal the Notice to the Zoning Hearing Board within twenty days of receipt.

The Pohlands did not appeal the First Notice, but continued growing flowers and assembling them into the final product while attempting to amicably resolve the matter with the Borough by relocating the pressing and framing portions of their business to an adjacent property at the rear of their Hamilton Avenue property, which the Pohlands purchased for their business. The adjacent property is located in Derry Township, which has no zoning laws, but, having a house located thereon, has not the land area to supply flowers in sufficient commercial quantities for the Pohlands' business. Before moving the pressing and framing portions of their business, however, they signed an agreement ("Agreement") with the Borough, giving them additional time. This Agreement, dated August 30, 1994, was signed on behalf of the Borough by the Director of Administration and Finance for the Borough as well as by the Borough Solicitor.

The Pohlands admitted in the Agreement that a business activity had been occurring on the property which was a violation of the Borough's Zoning Ordinance. *fn1 "Business activities" were described therein as the creation of crafts from pressed flowers which involves approximately eight to twelve employees working upon the Hamilton Avenue premises. (R., Plaintiff's Ex. 4 at 1.) The Pohlands agreed that "no further business activity of any nature, frequency or degree not specifically permitted in writing by the Zoning Ordinance of the Borough will be conducted upon the premises . . . on or after March 1, 1995," and the Borough agreed to delay any action to enforce the Cease and Desist Order until March 2, 1995. The Agreement was based on the Pohlands' representation "that they have obtained a location for the conduct of their craft business at some other location outside the Borough . . . and that they require until March 1, 1995, to prepare said new location for the continuation of their business." Id. at 2-4. At the request of the Pohlands the following clause was additionally incorporated into the main body of the Agreement, becoming paragraph two (Paragraph Two) thereof

It is understood and acknowledged that the subject property is presently developed with landscaped flower gardens, the product of which is utilized in the business operation. Nothing contained herein shall be construed to prohibit the continued cultivation of these flowers, in a manner and fashion similar to other residential properties, as ...


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