T. M. Stump v. Unity Twp ZHB, et al. (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Timothy M. Stump, Appellant v. Unity Township Zoning Hearing Board and The Township of Unity BEFORE: : : : : : : : No. 1743 C.D. 2007 Submitted: April 4, 2008 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE FRIEDMAN FILED: May 30, 2008 Timothy M. Stump (Stump) appeals from the August 29, 2007, order of the Court of Common Pleas of Westmoreland County (trial court), which affirmed the decision of the Unity Township Zoning Hearing Board (ZHB) denying Stump s appeal from a Notice of Violation issued by The Township of Unity s (Township) Zoning/Planning Officer (Zoning Officer). We affirm. Stump owns property (Property) located on State Route 30 in the Township; since approximately 1988, he has operated a business called Tim s Recycling on the Property. As a part of his business, Stump buys and recycles metal, cardboard, aluminum and junked cars, which he stores on the Property. In 1991, the Township enacted its Zoning Ordinance, which zoned the Property as B- 2, community commercial. Recycling facilities and junkyards are not permitted uses in the B-2 zoning district. (R.R. at 141a.) By Notice of Violation dated May 15, 2006, the Zoning Officer informed Stump that he was violating the Zoning Ordinance by displaying a sign on the Property without a permit. The Notice of Violation also advised Stump that: his recycling business was a nonconforming use; he could continue to operate the recycling business at the level in existence when the Zoning Ordinance was adopted; the ZHB had to approve any change in this use; and he must cease and desist all activities that were not conducted prior to the enactment of the Zoning Ordinance. Finally, the Notice of Violation stated that Stump was violating Chapter 72 of the Township Code (Junkyard Ordinance) by operating a junkyard without a license, and, therefore, the activity of buying and selling junk cars at the Property was prohibited.1 Stump agreed to remove the unpermitted sign, but he appealed the Zoning Officer s determination that his buying and selling junked cars was not allowed on the Property as violative of the Junkyard Ordinance. 1 In 1974, the Township adopted the Junkyard Ordinance. Section 72.2 of the Junkyard Ordinance defines junk as [a]ny discarded material or article, and shall include but not be limited to ... scrapped, abandoned or junked motor vehicles. That section defines junkyard as [a]ny place within the township where junk as herein defined is stored, disposed of, accumulated or maintained. Any premises as herein defined having one or more used, unlicensed or without a current inspection sticker and inoperative automobiles or other vehicles thereon shall, in any event, be deemed a junkyard. (R.R. at 56a.) Section 72.3 of the Junkyard Ordinance, in relevant part, provides: [n]o person shall engage in business as a junk dealer or maintain a junkyard without first having obtained a license to operate a junkyard as a junk dealer. (R.R. at 57a.) 2 Before the ZHB, Stump acknowledged that he stores junked cars on the Property and operates a junkyard without complying with any of the requirements of the Junkyard Ordinance. However, Stump stated that he considers his business to be the recycling of junked cars rather than a junkyard. Nevertheless, Stump argued that, because he began operating the junkyard on the Property before the Zoning Ordinance was enacted, he could continue to operate the junkyard as a legal nonconforming use. Alternatively, Stump requested that the ZHB approve a change of use for the Property to allow him to operate a junkyard. The ZHB rejected Stump s nonconforming use argument, holding that the junkyard use did not qualify as a legal nonconforming use because Stump never obtained a license to operate a junkyard, as required by the Junkyard Ordinance. The ZHB also found that the junkyard was not permitted as part of the nonconforming recycling use because recycling as defined in section 103 of the Municipal Waste Planning, Recycling and Waste Reduction Act2 (Act) does not include the sale or reuse of cars. Finally, the ZHB rejected Stump s request for a change of use. The ZHB concluded that a change of use to a junkyard would have to be pursued under the permitting requirements of the Junkyard Ordinance, which required Stump to apply to the Township Board of Supervisors (Board) for a license. 2 Act of July 28, 1988, P.L. 556, as amended, 53 P.S. §4000.103. The Act defines recycling as [t]he collection, separation, recovery and sale or reuse of metals, glass, paper, leaf waste, plastics and other materials which would otherwise be disposed or processed as municipal waste ¦. 53 P.S. §4000.103. 3 Stump appealed to the trial court, and, by order dated January 30, 2007, the trial court stayed its proceedings to allow Stump to obtain a junkyard license. Stump did not obtain the requisite license, and the Township, which intervened before the trial court, requested the trial court to proceed on the merits of Stump s appeal. Without taking additional evidence, the trial court affirmed. On appeal,3 Stump again argues that the ZHB erred by concluding that he could not continue to operate his de facto junkyard as a nonconforming use. We disagree. A pre-existing nonconforming use arises when a lawful existing use is subsequently barred by a change in the zoning ordinance. Hager v. West Rockhill Township Zoning Hearing Board, 795 A.2d 1104 (Pa. Cmwlth. 2002). The right to maintain a pre-existing nonconforming use is available only for uses that were lawful when they came into existence and which existed when the ordinance took effect. Id. It is well settled that pre-existing illegal uses cannot become nonconforming uses. Id. Because Stump never obtained a license to operate a junkyard, the junkyard use was not a lawful use when the Zoning Ordinance was enacted and, therefore, cannot be continued as a lawful, nonconforming use. Id. Accordingly, Stump does not have the right to maintain the junkyard as a lawful, 3 Where, as here, the trial court takes no additional evidence, our scope of review is limited to determining whether the ZHB committed an error or an abuse of discretion. Hager v. West Rockhill Township Zoning Hearing Board, 795 A.2d 1104 (Pa. Cmwlth. 2002). This court may only conclude that the ZHB abused its discretion if its findings of fact are not supported by substantial evidence. Id. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. 4 nonconforming use under the Zoning Ordinance, and the ZHB properly affirmed the Zoning Officer s cease and desist order.4 Accordingly, we affirm. _____________________________ ROCHELLE S. FRIEDMAN, Judge 4 We also reject Stump s contention that the ZHB erred in refusing to grant his request to change the use of the Property to allow him to operate a junkyard. The Junkyard Ordinance clearly provides that a person seeking to operate a junkyard in the Township must apply to the Board for a license. Sections 72-3, 72-4 and 72-5 of the Junkyard Ordinance. (R.R. at 57a-58a.) For the ZHB to approve the operation of a de facto junkyard without the required license would usurp the Board s authority to license and regulate junkyards in the Township. 5 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Timothy M. Stump, Appellant v. Unity Township Zoning Hearing Board and The Township of Unity : : : : : : : No. 1743 C.D. 2007 ORDER AND NOW, this 30th day of May, 2008, the order of the Court of Common Pleas of Westmoreland County, dated August 29, 2007, is hereby affirmed. _____________________________ ROCHELLE S. FRIEDMAN, Judge

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