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Hafner v. Zoning Hearing Board of Allen Township

May 21, 2009

WALTER N. HAFNER, JR. AND BONNIE HAFNER, TRUSTEES, HAFNER REVOCABLE LIVING TRUST AGREEMENT, APPELLANTS
v.
ZONING HEARING BOARD OF ALLEN TOWNSHIP AND BRIAN J. KULP AND MELISSA J. KULP
BRIAN J. KULP AND MELISSA J. KULP
v.
ZONING HEARING BOARD OF ALLEN TOWNSHIP AND WALTER N. HAFNER, JR. AND BONNIE HAFNER, TRUSTEES, HAFNER REVOCABLE LIVING TRUST AGREEMENT
WALTER N. HAFNER, JR., AND BONNIE HAFNER, TRUSTEES, HAFNER LIVING TRUST AGREEMENT
v.
ZONING HEARING BOARD OF ALLEN TOWNSHIP AND BRIAN J. KULP AND MELISSA J. KULP
WALTER N. HAFNER, JR. AND BONNIE HAFNER, TRUSTEES, HAFNER REVOCABLE LIVING TRUST AGREEMENT
v.
ZONING HEARING BOARD OF ALLEN TOWNSHIP AND BRIAN J. KULP AND MELISSA J. KULP
BRIAN J. KULP AND MELISSA J. KULP
v.
ZONING HEARING BOARD OF ALLEN TOWNSHIP AND WALTER N. HAFNER, JR. AND BONNIE HAFNER, TRUSTEES, HAFNER REVOCABLE LIVING TRUST AGREEMENT
WALTER N. HAFNER, JR., AND BONNIE HAFNER, TRUSTEES, HAFNER LIVING TRUST AGREEMENT
v.
ZONING HEARING BOARD OF ALLEN TOWNSHIP AND BRIAN J. KULP AND MELISSA J. KULP
APPEAL OF: BRIAN J. KULP AND MELISSA J. KULP



The opinion of the court was delivered by: Judge Simpson

Argued: April 2, 2009

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, (P) HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.

OPINION

These cross-appeals arise from a decision of the Court of Common Pleas of Northampton County (trial court) that affirmed two decisions of the Allen Township Zoning Hearing Board (ZHB). The proceedings before the ZHB arose from the inquiry of Brian J. Kulp and Melissa J. Kulp (Objectors) regarding the zoning applicable to an adjacent property where Walter N. Hafner, Jr. (Applicant) operates a tool repair business and a concrete cutting business. Upon review, we affirm in part and reverse in part.

I. Introduction

In the first of two ZHB proceedings, Objectors challenged a zoning officer's determination that both Applicant's businesses were lawful, pre-existing nonconforming uses. At hearing, Applicant, though represented by counsel, presented no evidence regarding the historical use of his property. After the hearing, the ZHB determined the tool repair business was a lawful, nonconforming use, while the concrete cutting business was not. Objectors appealed the ZHB's decision regarding the tool repair business, and Applicant appealed the decision regarding the concrete cutting business.

After the ZHB issued its decision regarding the concrete cutting business, Applicant initiated a new proceeding before the ZHB, applying for a variance by estoppel to permit continued operation of both businesses on the property. At the hearing on Applicant's variance by estoppel request, Applicant and his father testified regarding the property's use over time. After the hearing, the ZHB denied Applicant's variance by estoppel request. Applicant appealed to the trial court, and Objectors intervened.

The trial court consolidated the three appeals. Without taking additional evidence the trial court affirmed all of the ZHB decisions.

Before this Court, Objectors challenge the ZHB's determination that the tool repair business constituted a lawful, nonconforming use. Applicant challenges the ZHB's determination that the concrete cutting business was not a lawful, nonconforming use, and the ZHB's refusal to grant a variance by estoppel.

II. ZHB Proceedings

A. Nonconforming Uses

Allen Township enacted its first zoning ordinance in 1969. At that time, Applicant's property was situated within a Village Center (VC) zoning district. The VC district permitted repair shops for appliances, watches, guns, bicycles, and locks. The 1983 and 1994 versions of the zoning ordinance continued to allow repair shops, but required site plan approval. The 2000 zoning ordinance rezoned the property R-2 Medium Density Residential, and it no longer permitted repair shop use. The 1969 ordinance and all subsequent versions of the ordinance specifically prohibited operation of a contracting business on the property.

At the hearing, Objectors testified to their observations of the activities on Applicant's property from the time they purchased their property in 1989. At that time, Applicant's property consisted of two, three-bay garages. Initially, the activities on Applicant's property were limited to one person working inside the garages during the day and one person leaving the property in the morning in a van and returning in the afternoon.

Over time, the commercial use of the property increased steadily to its current level, which now includes the presence of more than ten employee vehicles, five to six box trucks, multiple vans, dumpsters containing concrete remnants, equipment stored outside the garages, and multiple employees working inside and outside the garages.

Objectors testified the noise from Applicant's property lasts from approximately 6:30 a.m. until between 6:00 and 8:00 p.m. The noise is audible on weekends and at times inside Objectors' home.

Objectors asked the township to investigate whether the relevant zoning ordinance permitted the activity on Applicant's property. The Allen Township zoning officer reviewed the zoning records and found neither the tool repair business nor the concrete cutting business were a permitted use on the property. Township records also indicated Applicant never received a permit for operation of either business.

In contrast, records indicated that in 1993, zoning authorities issued a cease and desist--enforcement notice to Applicant for three illegally-placed signs advertising the location of the tool repair business and for operating the tool repair shop in violation of the zoning ordinance. The zoning officer who investigated the property at the time noted the repair shop was of the type allowed in the VC district, but its operation required a zoning permit conditioned on the approval of a site plan. Subsequently, Applicant applied for a permit for the signs. The township denied the permit request again noting the requirement of submission and approval of a site plan. No plan was ever submitted and no permit was ever issued for the tool repair business.

The documents pertaining to the 1993 cease and desist notice only referenced the tool repair business and never mentioned the concrete cutting business. Further, the zoning officer who investigated the property in 1993 was present at the nonconforming use hearing and testified that, at the time of the cease and desist action, there was no concrete cutting business on the property, only a tool repair shop.

Applicant was represented by counsel who cross-examined witnesses and presented argument. Applicant did not testify, and he presented no evidence.

Ultimately, the ZHB concluded the relevant zoning ordinances allowed the tool repair shop use until the district was rezoned in 2000. As the evidence established Applicant operated a tool repair shop on the property prior to 2000, the ZHB determined the ...


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