Agenda - Planning Commission - 10/03/1995

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Page 2- September 1995 Z.B. ~.' Junkyard -- Owner Says Township's Actions Got It to Buy Nonconforming Junkyard Bernie Enterprises v. HiIltown Township Zoning Hearing Board, 657A.2d 1364 (Pennsylvania) 1995 Before 1959, a landowner operated a junkyard on 2.636 acres in the town- ship of Hilltown, Pa. In 1959, the township adopted its first zoning ordinance, which put the junkyard in a residential zone where junkyard use was prohib- ited. However, the ordinance provided for continuation of validly existing non- conforming uses. It also stated that nonconforming uses could expand by 50 percent without approval from the Zoning Hearing Board. In 1965, new owners bought the junkyard and two neighboring properties that did not have junkyards. Together the three lots were about 22.6 acres. In 1970, the zoning board denied the new owners' request for a variance to expand the junkyard to more than 18 acres. Nevertheless, the new owners expanded the junkyard from 2.636 to 4.5 acres. In 1976, Rio bought the property and expanded the junkyard to 8.5 acres without the board's permission. In 1988, Bernie Enterprises Inc. bought the property. Bernie Enterprises' owner was an experienced property owner who had been involved in past liti- gation regardingjunkyards. Rio's sales agreement with Bernie Enterprises stated the property was zoned residential "with a nonconforming use for 4.5+ acres for a salvage yard and auto parts store." The agreement was also conditioned on Bernie Enterprises getting from the township a nonconforming use and occu- pancy certificate for a 4.5-acre salvage yard and auto parts store. The company's owner said he knew Rio had started operating the junkyard.with only 4.5 acres and that Bernie Enterprises needed 8.5 acres to operate. However, he never asked if Rio had approval to expand b'eyond the 4.5 acres. Before finalizing the purchase, Bernie Enterprises consulted a zoning attorney and got the township's board of supervisors to approge the transfer (as the ordinance required for transfers of nonconforming uses, to'ensure the level of nonconformity did'not increase). In 1991, the township's zoning officer notified Bernie Enterprises that the junkyard violated the ordinance because it expanded onto other properties by more than 50 percent and did not comply with setback, storage, and waste disposal provisions. Bernie Enterprises appealed the citation to the zoning board, arguing it was entitled to continue to use the junkyard the same way Rio had. The company said the town supervisors' approval of the transfer was an "active acquies- cence'' to the expanded use. Bernie Enterprises claimed it relied in good faith on the township's acquiescence, so it had a vested right or a "variance by estoppel" to continue using the 8.5 acres as a junkyard. The company claimed it would not have bought the property if the township had not approved the transfer. The zoning board found the township had acquiesced to the expansion, but did not find credible the company owner's testimony re~ardin~ the company's