Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Sowich v. The Zoning Hearing Board of Brown Township

Commonwealth Court of Pennsylvania

July 29, 2019

William Sowich and Nancy Sowich
v.
The Zoning Hearing Board of Brown Township, and Edgewood Estates, Inc.
v.
Zoning Hearing Board of Brown Township
v.
Brown Township Appeal of: Edgewood Estates, Inc. William and Nancy Sowich
v.
Zoning Hearing Board of Brown Township Edgewood Estates, Inc.
v.
Zoning Hearing Board of Brown Township
v.
Brown Township

          Argued: April 11, 2019

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE MICHAEL H. WOJCIK, Judge (P.) HONORABLE CHRISTINE FIZZANO CANNON, Judge.

          OPINION

          MARY HANNAH LEAVITT, PRESIDENT JUDGE

         Edgewood Estates, Inc. (Landowner) and William Sowich and Nancy Sowich (Objectors) have cross-appealed an order of the Court of Common Pleas of Mifflin County (trial court) that affirmed a decision of the Zoning Hearing Board of Brown Township (Zoning Board). Objectors contend that the Zoning Board erred in holding that Landowner's use of the property for depositing, storing, and removing fill was a lawful nonconforming use that pre-dated restrictions in the Brown Township Zoning Ordinance (Zoning Ordinance).[1] Landowner contends that the Zoning Board erred in holding that Landowner's use of the property for grinding stone and storing concrete barriers did not constitute preexisting nonconforming uses. For the reasons that follow, we affirm in part, reverse in part and vacate in part, which requires a remand of the matter.

         Background

         Since 2006, Landowner has owned a 23-acre property in Brown Township (Township). The Township's 1979 Zoning Ordinance placed the northwestern part of Landowner's property in the R-1 (Rural Residential) Zoning District and the southeastern part of the property in the C (Commercial) Zoning District.[2] In February of 2011, the Township amended the Zoning Ordinance, placing the entire property in the R-1 Zoning District, with the exception of a 500-foot-wide strip abutting Route 322, which is zoned Commercial.

         On September 28, 2015, the Township's zoning officer issued a notice of violation to Landowner for the following activities:

1. Grinding [s]tone to make small stones from large stones;
2. Storing [c]oncrete [b]arriers (numerous)[;]
3. Moving fill to site and removing fill from the site[;]
4. Storing of [e]quipment and repetitive truck and heavy equipment activity related to Nos. 1-3 above;
5. Utilizing the [s]ite for [m]anufacturing activities and for commercial purposes and activity[;]
6. Otherwise establishing a new use and/or altering the existing use of the property.

Reproduced Record at 3a (R.R. __). The notice charged a violation of Section 502(1) of the Zoning Ordinance, which limits the "permitted by right" uses in the R-1 District to the following:

• Agriculture
• Cemetery
• Emergency Services
• Forestry
• House of Worship
• Municipal Building, Park or Playground
• Single Family Detached Dwelling
• Vacation Home

         Zoning Ordinance §502(1). The notice also cited Landowner for a violation of Section 1802(1)(A) of the Zoning Ordinance, which requires a zoning permit before introducing a "new use on a tract of land" or changing "any existing use to another use." R.R. 3a.

         Landowner appealed to the Zoning Board, asserting that its activities were lawful nonconforming uses that predated the 2011 amendment to the Zoning Ordinance.[3] Objectors, owners of an adjacent property, filed a petition to intervene, and on November 23, 2015, the Zoning Board held a hearing.

         Michael Watson, president and owner of Landowner, testified that his company acquired the property from Trumbull Corporation on April 7, 2006. When Trumbull built a section of Route 322 in early 2000, it dumped the construction debris on the property. When Landowner took possession of the property, there was a 40-foot pile of fill consisting of "[c]oncrete, rock, topsoil, concrete pipe, broken concrete barriers, [and] concrete from highway." Notes of Testimony (N.T.), 11/23/2015, at 34; R.R. 173a. This 40-foot-tall pile sat on top of another pile of aggregate. Watson testified that Landowner used the property to "haul in fill, to take fill out, to store various construction materials], as a stock yard." Id. at 52; R.R. 191a. According to Watson, other companies, including those "that were doing jobs for the [T]ownship," also used the property for this purpose. Id. at 53-54; R.R. 192a-93a.

         Regarding the stone grinding for which Landowner was cited, Watson testified that Landowner has crushed stone on the property three times since 2006: in the spring of 2015, sometime in 2013, and "[o]ne other time before that." Id. at 60; R.R. 199a. The crushing was needed to "break the rocks down to smaller rocks" for different uses in Landowner's landscaping and construction business. Id. at 61; R.R. 200a.

         Watson testified that there were five concrete barriers left on the property when it was acquired in 2006. In July of 2015, Landowner entered into a contract to store approximately 400 concrete barriers on the property.

         Watson also testified that because of the large amount of aggregate, most of the property is not suitable for residential development. At most, only one acre is suitable for a residence or a church. The property cannot be used to grow crops because it is "basically all stone." Id. at 67; R.R. 206a. However, Watson believed the property could be used for "forestry" or for a "sawmill." Id. He explained:

[Counsel:] In what manner?
[Watson:] You could put the same thing, you could grind mulch there, you could haul mulch in everyday, you could haul logs in…. Because it does have a good base for that.
[Counsel:] To do those kind of uses would [] require putting some kind of heavy machinery in there?
[Watson:] Yes.
[Counsel:] And require trucks coming in?
[Watson:] Yes.

Id. at 67-68; R.R. 206a-07a.

         Landowner argued to the Zoning Board that the activities cited in the notice of violation were comparable to those conducted at a sawmill or a planing mill. Both these uses were permitted in the R-1 District prior to the 2011 amendment to the Zoning Ordinance.

         Zoning Board Decision

         By decision of January 7, 2016, the Zoning Board concluded that Landowner's use of the property for depositing, storing, and removing fill was a lawful nonconforming use. By contrast, crushing stone and storing more than five concrete barriers on the property were not lawful nonconforming uses.[4]

         The Zoning Board observed that using land for a fill operation was similar to "warehousing and storage," which was a permitted use in the Commercial or Industrial District. Board Decision, 1/7/2016, at 2-3; R.R. 74a-75a. The Zoning Board concluded that Landowner's fill operations constituted a lawful nonconforming use because it "had been ongoing more or less continuously since [Landowner] purchased the property in 2006." Id. The Zoning Board did not specify whether a fill operation was lawful in the R-1 District under the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.