Argued: April 11, 2019
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge (P.) HONORABLE CHRISTINE
FIZZANO CANNON, Judge.
HANNAH LEAVITT, PRESIDENT JUDGE
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). 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.
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. 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.
September 28, 2015, the Township's zoning officer issued
a notice of violation to Landowner for the following
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:
• Emergency Services
• House of Worship
• Municipal Building, Park or Playground
• Single Family Detached Dwelling
• Vacation Home
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.
appealed to the Zoning Board, asserting that its activities
were lawful nonconforming uses that predated the 2011
amendment to the Zoning Ordinance. Objectors, owners of an
adjacent property, filed a petition to intervene, and on
November 23, 2015, the Zoning Board held a hearing.
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.
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.
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.
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?
[Counsel:] And require trucks coming in?
Id. at 67-68; R.R. 206a-07a.
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
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
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 ...