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Harrisburg Gardens, Inc. v. Susquehanna Township Zoning Hearing Board

September 23, 2009

HARRISBURG GARDENS, INC., APPELLANT
v.
SUSQUEHANNA TOWNSHIP ZONING HEARING BOARD



The opinion of the court was delivered by: Senior Judge Kelley

Argued: March 31, 2009

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE DAN PELLEGRINI, Judge, HONORABLE JAMES R. KELLEY, Senior Judge.

OPINION

Appellant Harrisburg Gardens, Inc. (Harrisburg Gardens) appeals from an order of the Court of Common Pleas of Dauphin County (Trial Court) that overruled Harrisburg Gardens' appeal of, and affirmed, a Decision of the Susquehanna Township Zoning Hearing Board (Board). The Board's Decision, inter alia, concluded that Harrisburg Gardens' present use and operation of its property and business was not a valid nonconforming use, and further was not a natural expansion of a pre-existing valid nonconforming use enjoyed by Harrisburg Gardens' predecessor. We affirm.

Harrisburg Gardens is the owner of approximately 7 acres of real property (hereinafter, the Property) on which it operates a nursery and garden center, selling plants, landscape boulders, pavers, stone, mulch, topsoil and related products. Harrisburg Gardens is also involved in landscaping, excavating, shrub and grass care and services, and the installation of patios, retaining walls, and ponds. The Property is located in a residential neighborhood containing approximately thirty-one residences, of which at least ten abut the Property.

Harrisburg Gardens purchased the Property in 2000 from a party named Montgomery, who in turn had previously purchased the Property from Walter-Nissley-Walter (WNW). During the period of Montgomery and WNW operations, the business was primarily a nursery, earning its profits from the sales and service of plants, trees and shrubs, with a small percentage of sales generated by the sale of stone and mulch. During those periods, the business maintained two or three storage bins for mulch, topsoil, and/or stone or related products. The business, at that time, maintained no inventory of large landscape boulders.

Since its purchase of the Property, Harrisburg Gardens' business operations have evolved toward the selling of more retaining wall and landscape materials, although it does still grow and sell plants and related products, some of which are brought in from off site. However, the business currently derives more than half of its sales volume from stone and related products, as opposed to plant-related products. During the current ownership of the business, Harrisburg Gardens has expanded spatially on its lot without the erection of new buildings, and now employs more workers. Harrisburg Gardens' current operation involves the use of large trucks for the purpose of handling its on-site inventory of large landscaping boulders. The current business uses more and larger trucks, and causes significantly more noise and dust, in comparison to its predecessor. Until recently, Harrisburg Gardens had also been manufacturing topsoil and crushing rock on the Property, which was then trucked off site. The Property's number of mulch/topsoil/stone storage bins had also increased significantly.

At an unspecified time prior to the proceedings at issue, Susquehanna Township Zoning Officer Michael Rohrer responded to complaints filed by Harrisburg Gardens' neighbors concerning its current uses of the Property. Rohrer performed a site inspection of the business, and then forwarded a letter to neighbors Tim and Pam Alvey (the Alveys) indicating that Harrisburg Gardens was operating a legal, nonconforming entity that was not in violation of any ordinance.

Thereafter, however, on August 9, 2006, Rohrer forwarded a letter to Harrisburg Gardens' owner indicating that a subsequent site inspection confirmed that the business had expanded its prior nursery business to include the manufacturing of topsoil and stone. Rohrer further stated, therein, that the prior nonconforming use had not included such manufacturing activities and that manufacturing was not listed as a permitted use under the Susquehanna Township Zoning Ordinance (Ordinance)*fn1 for the R-2 Zoning District in which the business was located. Rohrer also noted that any nonconforming use extension must be approved by the Board via special exception. Rohrer further notified Harrisburg Gardens that certain large landscaping boulders were being stored in violation of the visibility requirements in Section 2108.2 of the Ordinance, and requested that the boulders be relocated.

On September 6, 2006, Rohrer again wrote to the Alveys, stating that Harrisburg Gardens had removed the large boulders as requested, that Harrisburg Gardens had removed a soil/rock processing machine, and that the business was no longer manufacturing products on the Property. Rohrer concluded that Harrisburg Gardens was therefore no longer in violation of the Ordinance.

On October 9, 2006, the Alveys filed a Notice of Appeal with the Board, claiming, in relevant part, that Harrisburg Gardens was still in violation of the Ordinance in relation to its continuing nonconforming uses, and that its activities represented an unhealthy, harmful trespass upon the properties of the neighbors of the business. The Alveys requested that the Board either reassess Harrisburg Gardens' uses of the Property, or formally require the business to submit an application for an extension of nonconforming use. The Board thereafter held hearings on November 1, 2006, and January 17, 2007.

By Decision filed on March 2, 2007, the Board sustained the Alveys' appeal, concluding that Harrisburg Gardens' present use and operation was neither a valid nonconforming use, nor a valid continuation of any prior nonconforming use of its predecessor. The Board noted, in its Decision, the doctrine of natural expansion, under which our Courts have held that the owner of a nonconforming use may expand that use in the pursuit of expanding its business.*fn2 However, the Board concluded that the evidence presented in this case demonstrated that Harrisburg Gardens' current operation was not a mere expansion or enlargement of a similar business activity, but something new and dissimilar to the existing nonconforming use. The Board particularly noted that Harrisburg Gardens' current operation included a change in the intensity and concentration in certain business activities, including significant increases in noise, dust, dirt, vibration, and large truck traffic, as well as the use of a greater number of trucks, employees, and large material storage bins. Accordingly, the Board sustained the Alveys' appeal, expressly concluding that Harrisburg Gardens' present use and operation of its business was not a valid nonconforming use, and was not a valid continuation of the nonconforming use enjoyed by Harrisburg Gardens' predecessors.

On March 30, 2007, Harrisburg Gardens filed in the Trial Court a Land Use Appeal from the Board's Decision, and additionally filed a Motion for the Presentation of Additional Evidence (the Motion). By order dated April 4, 2007, the Trial Court remanded the matter to the Board for consideration of Harrisburg Gardens' Motion. Thereafter the Board held a hearing on June 6, 2007, to receive the requested additional evidence. At the Board hearing, Harrisburg Gardens' requested a continuance due to the unavailability of its witnesses, which continuance was denied. The Board, however, did receive additional testimony from three witnesses that had previously testified before the Board in the matter. On July 18, 2007, the Board sent to the Trial Court the additional evidence received, without issuing a new decision in the matter.

On November 30, 2007, Harrisburg Gardens filed a Motion to Strike the Testimony, Exhibits and Record Created by the Board (hereinafter, Motion to Strike), seeking to exclude the testimony presented to the Board in its second hearing by those witnesses that had previously testified in the matter. Harrisburg Gardens, therein, noted that testimony from witnesses who had previously testified should have only been allowed as rebuttal, and not ...


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