Agenda - Planning Commission - 01/04/2000

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Z.g. December 24, 1999 -- Page 3 see also: Snyder v. Waukesha County Zoning Board of Adjustment, 247N. W..2d 98 (]976). see also: State v. Kenosha County Board of Adjustment, 577 N. W.2d 813 (1998). Nonconforming Use -- Topsoil business dalms change in methods is an expansion of nonconforming use PENNSYLVANNIA (1 I/18/99) -- Clanton was the owner of fourteen acres of land in London Grove Township. At the time of the purchase, the land was zoned Industrial-Commercial. In 1988 Clanton started an excavating business on the property. This business included the storage of equipment on the prop- erty including dump trucks, front-end loaders, bulldozers, and backhoes. In the early 1990s, Clanton received a mining permit from the state and began excavating the southern portion of the property known as "the pit." Clanton deposited excess dirt from his excavating.jobs into the pit along with spent compost. Clanton also excavated and sold dirt from the pit, which was removed from the property in dump trucks. Clanton mixed the dirt from the pit with compost in front-end loaders, which was then tracked away and sold in bulk. In 1995, Clanton's property was rezoned Residential-Mobile Home and Clanton's use of the property became nonconforming. In 1997, Clanton began to dry and bag the topsoil. Nutra Soils Inc., a corporation of which Clanton was one of five owners, took over the process. Nutra Soils operated under an infor- mal lease. The bagging operation entailed the placement of a very large dryer and other equipment on the property. Approximately 75 percent of the soil used was obtained from neighboring properties and the balance obtained from the pit. The bagged topsoil was then removed from the property by tracks. Soon after, the township's zoning enforcement officer issued a violation notice to Clanton claiming the bagging operation had begun illegally without applications for permits from the township. Clanton appealed the notice to the board and sought a variance or special exception. The board voted to deny the request, concluding Clanton's use of the property constituted a new use in violation of the zoning ordinance. Clanton sued. The court reversed the board's decision, stating only the in- strumentality, not the fundamental use of the property, was different. Basically, the use changed from loose bulk sales of soil to sales of 40-pound bags of soil. The township appealed, arguing the court was wrong in concluding the operation constituted a continuation of a nonconforming use rather than an impermissible new use of the property. DECISION: Affirmed. The drying and bagging of the topsoil constituted an expansion of a non- conforming use rather than a new use. The owner of a property to which a lawful nonconforming use has attached