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1 Wednesday, October 15, 1997
2 Newburg, Pennsylvania
3 Zoning Hearing Board of Hopewell
4 Township convened for the purpose of hearing
5 Application (#1997-1) - Application of Joseph and Nancy
6 Breski to request an interpretation of Section 11.03C of
7 the Hopewell Township Zoning Ordinance with respect to
8 inoperable, unlicensed or junked motor vehicles, as well
9 as Sections IO.GIG.le, 13,OlC and 12.01C with respect to
10 the Township's handling of this matter, The property is
11 located at 217 Zion Road, Newburg, PA.
12 (Convened at 7:00 p,m.)
13
14 THE CHAIRMAN: Good evening folks. My name is
15 David Rutherford, Tonight I'm serving as Chairman of the
16 Zoning Hearing Board, This meeting is now called to
17 order.
18 Let this hearing of the Hopewell Township Zoning
19 Hearing Board come to order,
20 Let the record show that Zoning Hearing Board
21 Members: David Rutherford, Jay Pyne, and Lance Heberlig
22 are present, and the Solicitor Michael Rundle, and Zoning
23 Officer Jeffrey Danner are present,
24 Let me read through some material and then we'll
25 get this out of the way, and we'll see what happens.
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The purpose of this hearing is to listen to the situation
regarding Joseph Bresld and Nancy Breski, and their
Attorney, requesting an interpretation of the Zoning
Ordinance and the actions of the Zoning Officer, as stated
in the material that we received.
The property and Township buildings were posted
in accordance with the Municipal Planning Code,
All appointed Members of the Zoning Hearing
Board are present,
Let me just share with you that a written
decision of the Zoning Hearing Board will be given to you
within fortY-five (45) days of tonight,
The Board will conduct its discussions and
vote on all matters in pUblic session. If further
discussion is needed, it will be conducted by notice to
you.
All matters will be decided on a roll call vote,
either yes or no, and a tie vote is considered a
rejection.
The copy of the final decision will be delivered
to Applicants personally or mailed to you. All other
persons who have filed their names and addresses with this
Board will be provided a brief notice of the decision and
where the full decision can be examined.
Once the application has been voted on and the
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meeting adjourned, there will be no reconsideration of the
Board's decision. The Applicants may reapply based on new
evidence that substantially alters the condition of the
petition.
The rules and procedures and by-laws identified
in the Zoning Hearing Board Planning Book Series No, 6
govern this hearing.
Let's identify the individuals who wish to
be heard tonight, Would you identify yourselves,
please?
MR. WEBBER: Richard Webber, Attorney for Joseph
and Nancy Breski,
THE CHAIRMAN: If you wish to speak you'll need
to let us know.
MR. BRESKI: My name is Joe Breski. This is my
wife Nancy Breski.
THE CHAIRMAN: Will you be speaking, Mrs.
Breski?
MRS. BRESKI: I don't know.
MR. WEBBER: Yes,
MRS. BRESKI: Yes.
THE CHAIRMAN: Others?
MS. WINDER: I'm Sally Winder, solicitor for the
Board of Supervisors of Hopewell Township.
MR. DANNER: Jeff Danner, the Zoning Officer.
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THE CHAIRMAN:
MR. BENDER:
Anyone else?
Harold Bender, Chairman of the
Board of Supervisors.
MR. HOOVER: Marlin Hoover, Vice-Chairman.
TIlE CHAIRMAN: All parties here tonight
have the right to be represented by counsel and shall
have the opportunity to respond and present evidence,
and to cross-examine adverse witnesses on all relevant
issues.
The hearing is recorded by a stenographer. All
witnesses testify under oath, We'll administer that oath
when we get to preparing for the testImony.
The Board will exclude irrelevant, immaterial or
incompetent or unduly repetitious testimony or evidence.
As Chairman I will rule on all questions
relative to the admissibility of evidence. The majority
vote of the Board can overrule me,
It is now time for those people who wish to ma~e
presentations to hear the oath as administered by the
stenographer. If you're planning to make a presentation
tonight you'll need to take that oath,
We can take that oath together. Is that
correct?
MR. RUNDLE: Sure.
THE CHAIRMAN: If you're going to make any
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presentation, please do as she asks.
Whereupon,
JOSEPH BRESKI
NANCY BRESKI
JEFFREY A. DANNER
HAROLD BENDER
MARLIN HOOVEH
having bean first dUly sworn or affirmed, according to
law.
THE CHAIRMAN: Now it is time for us to hear the
statement by the APPlicant.
YOur Case?
MR. RUNDLE: Mr, Webber, do you want to present
MR. WEBBER: Yes. Mr. Chairman, prior to
presenting our case I do have a matter which I Would like
to discuss with your Solicitor and OPPOsing Counsel
relating to a potential conflict of interest iSsue. And
We can speak at So-called sidebar or outside the presence
of everyone else.
It involves something that could disclose some
potentially confidential information and so forth. And,
it's also a matter that I think that the Board, or at
least your Solicitor, should be aware of before we get
started with this proc8eding,
MH. RUNDLE: Adjourn for a few minutes.
THE CHAIRMAN: We will adjourn into an executive
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session while we discuss this matter.
MR, DANNER: I think you're Supposed to stay
here, Dan.
THE CHAIRMAN: I need to hear this, since I was
asked to rule on it.
MR. DANNER: Okay.
(Recessed at 7:08 p.m., at which time Attorney
Webber, Attorney Winder, Attorney Rundle, and Chairman
Rutherford had a discussion outside the presence of the
parties to the hearing, Reconvened at 7:12 p,m,)
MR. RUNDLE: Back in session at twelve minutes
after.
THE CHAIRMAN: Mr. Webber, you were presenting?
MR, WEBBER: Yes, Mr, Chairman, Members of the
Board, my name is Richard Webber, I represent Joseph and
Nancy Breski.
We filed this document, which I believe you have
a copy of, an appeal from the Zoning Officer decision and
related Enforcement Notice and proceedings.
This relates to an Enforcement Notice which was
sent to my client on June 21st, 1997, I'm not going to
read it verbatim, but I do want to highlight a few points
that we raise in the document that we filed.
MR, RUNDLE: Mr, Webber, before you do that, I
think an issue that is paramount here is the fact of
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whether this appeal was a timely appeal, And I would
suggest to counsel that before even addressing the merits
of the appeal itself, the issue of timeliness should first
be presented.
It's clear the Municipalities Planning Code
requires an appeal from any determination adverse to a
land owner to be filed by the land owner within thirty
(30) days after the notice of the determination.
And Mr. Danner's Notice to Mr. Breski is dated
June 21st, and I believe was served on June 21st of this
year. And it's far later than thirty (30) days after
that.
So, if you could initially present your
testimony with respect to the timeliness, and let the
Board make the decision on that. And, if it falls in your
favor with respect to that, we can then hear the merits.
Do you have a problem with that?
MR. WEBBER: When you ask, are you asking for
testimony concerning this issue or are you asking for--
First of all, I have a few opening remarks I'd
like to make with respect to that issue.
MR. RUNDLE: certainly. Procedurally do you
object to proceeding that way?
MR. WEBBER: No, I do not object to that at
all.
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MR. RUNDLE: Ms. Winder?
MS. WINDER: I don't.
MR. WEBBER: certainly we're aware of the fact
the Municipalities planning Code requires that an appeal
be filed within thirty (30) days of the determination
that's made by the Zoning Hearing Officer and serving of
that determination through the Enforcement Notice.
Our contention is, number one, that provision
does not apply in a situation where an Enforcement Notice
is invalid on its face. And then in our appeal we mention
and recite the reasons why we feel that the Enforcement
Notice was not properly given.
Thore are three elements at least, of six that
are required to be inserted into an Enforcement Notice,
that are not present in this situation. The Enforcement
Notice is therefore invalid,
We feel that we have thirty (30) days from the
issuance of a valid Enforcement Notice in which to appeal
or come before the Board with any issues related to that
situation.
So, number one, we're asking that this Board
render a decision that that Enforcement Notice is invalid.
And, I've brought along case law, which I believe I've
previously supplied opposing counsel with the cases.
The main case is the Commonwealth Court Case in
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which the Court stated that the initial determination in
any enforcement action must be whether or not the
Enforcement Notice was valid. And, in that particular
case a land owner did not even appeal the Notice to begin
with. But, in any event, the Court has determined that
that's the standard,
And, our position is, regardless of the thirty
(30) day provision in the Municipalities Planning Code,
where you have an invalid Notice, then looking at the
Notice is the first thing that the Board should do.
And there's no thirty (3D) day provision applicable to
that.
The Municipalities planning Code talks about
determinations made by thA Zoning Officer, but our
position is the invalid Notice is not a "determination
made by the officer," and so our appeal is not untimely.
Secondly, we've raised other issues in the
document that we filed, one of which was a substantive
challenge to the Zoning ordinance as it applies to the
Breski situation.
Another issue we raised was the register.ing of
his use of the land in this matter as a nonconforming
use. And the Township has not taken any official action
on that issue, and so we feel that that issue is certainly
timely.
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I'm going to provide a copy of the case of Erie
v~rsus Fratus, and also several cases which were decided
by the York County Court of Common Pleas. And it's very
clear from the holdings in those cases that the
Enforcement Notice has to be properly issued, has to be
properly prepared, All the elements have to be there in
order for the Township to proceed with their case.
Then our position is that those cases control
here and the thirty (30) day provision isn't applicable,
at least with respect to the issue of the invalid Notice.
(Cases handed to the Board.)
MR. WEBBER: The other point that I want to
raise, it's our contention that the Township is estopped
from raising the timeliness issue, because one of the
elements that they failed to put in their Notice was that
my client had thirty (30) days to appeal to the Zoning
Hearing Board.
It's very clear in the Municipalities Planning
Code that the Notice must tell the land owner how much
time he has to appeal and the procedures for doing so.
That Notice does not contain that provision.
And, now for the Township to come in and claim
that the Breskis have filed this too late is simply
unfair. In other words, they can't have it both ways.
They can't violate the Municipalities Planning Code and
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I'm going to provide a copy of the case of Erie
versus Fratus, and also several cases which were decided
by the York county Court of Common Pleas. And it's very
clear from the holdings in those cases that the
Enforcement Notice has to be properly issued, has to be
properly prepared. All the elements have to be there in
order for the Township to proceed with their case.
Then our position is that those cases control
here and the thirty (30) day provision isn't applicable,
at least with respect to the issue of the invalid Notice.
(Cases handed to the Board.)
~lR. \~El:lBER: The other point that I want to
raise, it's 0ur contention that the Township is estopped
from raising the timeliness issue, because one of the
elements that they failed to put in their Notice was that
my client had thirty (30) days to appeal to the Zoning
Hearing Board.
It's very clear in the Municipalities planning
Code that the Notice must tell the land owner how much
time he has to appeal and the procedures for doing so.
That Notice does not contain that provision.
And, now for the Township to come in and claim
that the Breskis have filed this too late is simply
unfair. In other words, they can't have it both ways.
They can't violate the Municipalities Planning Code and
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also the Zoning Ordinance, which has that same requirement
in it, and then come in here and olaim that the Breskis
are untimely in their filing.
So, for all those reasons, we feel that the
Zoning Hearing Board this evening has the ability and the
right to make a decision, first of all. Seoondly, that
the Enforoement Notice itself was invalid and therefore
the Township's oase should be dismissed.
And even if the Board finds that the Enforoement
Notice is not invalid, the issues conoerning the
nonoonforming use and the substantive challenge, and the
evidenoe presented relating to those issues will show that
the Breskis are entitled to use the property as they've
been using it.
MR, RUNDLE: Ms. Winder, do you want to make any
opening remarks before testimony is presented?
MS, WINDER: I'd like to ask a question first of
Mr. Webber.
He told us that the Notioe has three defects,
One is failure to state that there are thirty (30) days to
file an appeal. The second is failure to recognize this
as a nonoonforming use, Is that your statement?
MR, WEBBER: No. I'm not stating that the
Notioe is defeotive for failing to recognize it as a
nonoonforming use. What I am saying is that we have
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raised the issue of nonoonforming use in this document as
a separate issue, and what we're asking the Board to do is
to certify this use as a nonconforming use.
And it's our position that the Township has not
taken offioial action on that request, and therefore it's
certainly timely.
MS. WINDER:
MR.
Okay.
Do you want to present your
RUNDLE:
testimony?
MR. WEBBER: Yes. If I could receive
clarification on the scope of the testimony initially?
MR. RUNDLE: Mr. Chairman, I believe that
initially the testimony should be limited to the
timeliness of the appeal,
MR. WEBBER: Okay, At this time, I would call
Joseph Breski.
THE CHAIRMAN: You can speak from there or you
can come to the table, Mr. Breski, whichever you'rfl
comfortable doing.
MR. BRESKI: I'll just sit over here. r'm Joe
Breski,
MR. RUNDLE: Your counsel will ask you
questions, Mr. Breski.
MR, BRESKI:
MR. WEBBER:
I'm sorry.
If the Board will indulge me for
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just a minute, I need to organize some things in order to
address the first issue.
Whereupon,
JOSEPH BRESKI
having been previously sworn or affirmed, according to
law, testified as followsl
DIRECT EXAMINATION
BY MR. WEBBER I
Q Mr, Breski, could you state your full name and
address for us, please, for the record?
A My name is Joseph Breski. I live at 217 Zion
Road, Newburg.
Q Where do you work, Mr. Breski?
A I'm self-employed.
Q And would you tell us about your business and
what you do?
A I basically have a construction business, JDJ
Home Improvements, which is also based at 217 Zion Road,
and has been since we moved our family there back in the
mid 80s.
Q Mr. Breski, at some point in time did you have
communications with the Township concerning the use of
your land?
A Of course living at 217 we've never really had a
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problem with that. Back in, I guess '96, I attempted to
put or am putting an addition onto my home, and as a
result of putting that attention on I didn't get a
building permit, And as time went on, due to the number
of cars that I have, the reason for putting the addition
on was to add another garage to the home. I'm sorry.
Q Excuse me, I don't want to interrupt you, but I
want to address the specific issue at hand dealing with
the timeliness,
A I'm sorry. We had questions in reference to the
land, I guess, which was back in late December of '96,
early '97,
Q And, as a result of the communication or
communications that you had with various persons in the
Township, did you receive a letter from the TownShip
concerning the use of your property for storing various
vehicles?
A Initially Mr, Danner, the Zoning Officer-- I
had come home one day and my youngest son had informed me
that the Zoning Officer was there in reference to this
building permit situation, arid that I was also to get rid
of the junked vehicles that I had sitting on my property.
Q And as a result of that did you receive a
written communication from Mr. Danner or anyone else?
A At that particular point, no. There was a
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certain amount of time that had elapsed. I guess,
Mr. Danner had come out or called me sometime after that,
But, eventually there was a letter that was sent
to me or not actually-- It was handed to my wife on the
day that our building permit was approved,
MR. WEBBER: I would ask how the Board would
want us to label our exhibits?
MR, RUNDLE: A1,
(Whereupon, Applicant's Exhibit No. 1 was marked
for identification.)
BY MR. WEBBER:
Q Mr. Breski, I'm handing you what has been
labeled as Exhibit A1. I'd ask that you identify that for
us, please?
A This was a letter that we had received from Mr.
Danner in reference to the vehicles that sit on the
property.
Q And what is the date of the letter?
A The letter is June 21st.
Q Of 19977
A 1997.
Q Did you receive any letters from Mr. Danner or
anyone else from the Township subsequent to June 21st of
1997?
A To the best of my knowledge I hadn't. That's
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not saying that I could have. But, to the best of my
knowledge I hadn't.
I think it's clear, it also states in here, I
guess, that he had sent it, On December 6th, 1996, I sent
you a letter with copies of the Zoning Ordinance informing
you that the accumulation of these unlicensed, inoperable
or junked motor vehicles--
Basically how that letter came about, that was
basically a copy of the Ordinance in the Township
pertaining to the vehicles and some other things that Mr.
Danner had highlighted in there in reference to, I don't
know, ultraviolet light or some kind of contamination
factors.
After Mr. Danner had come to my home that day
and talked to my son, I called Mr, Danner on the telephone
and informed Mr. Danner that the vehicles that he so aptly
referred to as junked were classic automobiles that we
were restoring, had been restoring for a number of years,
I have three children. Of all three of those
children, two of them graduated. Well, one of them
graduated from Shippensburg High School. One of them went
to Shippensburg for a couple years then transferred to
another high school, And this was back in the late 80s
and early 90s,
But, anyway, they drove a number of those
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vehicles to school, A lot of their friends had fun riding
in the cars through Shippensbu~g, Newburg, wherever.
When Mr, Danner came over that day and told my
son that I had to get rid of the cars, I right away phoned
Mr. Danner and I tried to express to Mr. Danner the fact
that these vehicles, you ~now, we were repairing them.
Some of the vehicles had tarps on them. I had
pulled the engines out. The engines are in various places
being repaired.
I had a couple of the vehicles that were in
shops that work on the major framework, unibody framework,
whatever.
And when I tried to explain to Mr. Danner that
they were classic automobiles and that they have been a
part of my life for a long time, he wasn't really
concerned about that. He kept referring to the fact that,
Well, yeah, inoperable, unlicensed and junked vehicles on
your property and you have to get rid of them.
And I wasn't really sure why he. was so
persistent in wanting me to get rid of them. So, I asked
him if he would please send me a copy of the Ordinance as
to its validity and when it was adopted. And I asked him
for the adoption date on the phone.
And at that point he, of course, had to go back
to his books for about a minute. And he came back on the
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phone and he told me that it was adopted sometime in April
of 1991. And I expressed to him at that point, I said,
Well, you know I've lived here from the late 80s. I said,
We've had these vehicles. My kids took them, drove them
to school. Everyone in this area that knows us knows
about these vehicles, And, well, he said, That's neither
here nor there. He said, We have an Ordinance and you
have to get rid of the vehicles.
I said, Well, the fact that the Ordinance Was
adopted in 1991 and I've had these vehicles prior to that,
I said, Don't we have a grandfather olause here
that would just simply overlook that? And of course Mr,
Danner told me, no, that the grandfather clause don't
apply, that the Ordinance that was adopted in April of
1991 did apply.
And I said, Well, now wait a minute. I said, I
have cars that are sitting here, '57 Chevys, '56 Chevys,
automobiles that I have thousands and thousands of dollars
tied up in. I mean, I have oars out there that are 25,
$26,000 automobiles, A '66 Mustang Convertible, '68
Fastback Mustang. I said, We're repairing these things,
moving them around. And it's for my own pleasure, my
pleasure, my two sons, and my daughter. And of course
that was all brought out later. He didn't really-- He
wasn't really concerned about that.
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He did inform me that he would send me a copy of
the Ordinance, and of course the date that the Ordinance
was executed.
Q Mr. Sreski, when he sent you a copy of the
Ordinance did he send you the entire Ordinance or did he
send you a part of the Ordinance?
A I got two copies, two sheets of paper, 8-1/2 by
11, like this, (\<Iitness indicating,)
Q And wer8 they attached to Exhibit AI?
A No, they weren't attached to anything. It was
just those two copies,
And he also failed to put the issuance date on
the copies pertaining to when the Ordinance was put into
affect,
At that particular point I got back on the phone
and I called Mr. Danner, And I said, I want to thank you
for sending me the Ordinance here, a copy of the
Ordinance, I said, but you omitted the date that it was
put into affect. And once again he had to go back and get
the exact date. And with that, of course, I wrote it on
the paper, which was April 1991.
Q Mr. Sreski, those two pages that you're
referring to, were those attached to this letter dated
June 21st, 1997, or were those attached to another letter
or?
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A No, They weren't attached to this letter.
(Whereupon, Applicant's Exhibit Nos. 2 and 3
were marked for identification,)
BY MR. WEBBER;
Q Mr. Breski, I'm going to hand you what has been
labeled as Exhibits A2 and A3. I'm going to ask that you
identify those two exhibits for us, please?
A These were the two copies, Pages 66 and 67. The
one would prohibit use in all districts, No use may be
permitted which-- He had them highlighted. No use may be
permitted which is noxious, offensive or objectionable by
reason of the emissions of smoke, dust, gas, odor, or
other form of air pollution or by reason of the deposit,
discharge, or dispersal of liquid or solid waste in any
form in a manner or amount as to cause permanent damage to
the soil and stream, or to adversely affect the
surrounding area, or by reason of the creation of noise,
whatever. I had no idea why he had highlighted that one.
I'm sure Mr. Danner has been out th8re on my
property, and we don't have transmission fluid and oil or
anything like that.
Q What about Exhibit A3?
A The other one, Page 67, Paragraph C, no
unlicensed, inoperable or junked motor vehicles.
MR, RUNDLE: YOll don't have to read the whole
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thing. It's in the Ordinance,
BY MR. WEBBER:
A Anyway, that's basically what he had sent me,
Once again, on these two copies, there's no date
p~rtaining to when the Ordinance went into affect.
Q Mr, 8reski, at any point in time, subsequent to
Mr. Danner's first contact with you concerning the
vehicles back in December of 1996, did you receive any
other copies of the Township zoning Ordinance from him or
parts of the Ordinance?
A No. I didn't receive them until I asked for
them.
Q So, in addition to the Notice dated June 21,
1997, it's your testimony you received Exhibits A2 and A3
and no other notices from the Township or copies of
Ordinances?
A No. As a matter of fact, when I questioned Mr.
Danner about the Ordinance itself and how it read in our
one telephone conversation, he implied to me that, number
one, he didn't have a copy of the Ordinance and that I
could go up to-- And I'm talking about the Ordinance
itself, the date that it was instituted and exactly what
it says.
And, he told me that I could go up to Alverda
Ocker's home and that I could go in there and get a copy
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of that or if I wanted to stay there and write it all
down. He said, because if they had to make a copy of it
it was going to cost me $35.
NoW, that's what the man told me on the
telephone. And, I said, Well, if I have time I'll go up
and I'll check the main Ordinance out or whatever it is
pertaining to when the thing was validated.
time.
MR. WEBBER: I have no further questions at this
position?
THE CHAIRMAN: No other statements for your
issue.
MR. WEBBER: No, not concerning the timeliness
I would move that EXhibits Al through A3 be
admitted into evidence.
MS. WINDER: We have no objection.
THE CHAIRMAN: They're admitted.
(Whereupon, Applicant's Exhibit Nos. 1,2 and 3
were admitted into evidence.)
MR. RUNDLE: Ms. Winder, do you wish to question
the witness?
marked?
MS. WINDER: I do. How do you want our exhibits
MR. RUNDLE: T for Township.
MS. WINDER: Okay.
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(Whereupon, Township's Exhibit No. 1 was marked
for identification.)
CROSS EXAMINATION
BY MS. WINDER:
Q Mr. BTeski, I'll show you what has been marked
for identification as Exhibit Tl. Do you reoognize that
document?
A Yes. This was the letter I got after. the first
time that I called him.
Q Is that a letter dated December 6th, 1996?
A It is dated December 6th, 1996. This was a
follow-up from when he stopped on my property and talked
to my son.
Q So, that's a letter from Jeffrey Danner, Is
that oorrect?
A Yes, And I might add th~t in the letter it
states-- And, if I may read this? The first paragraph
says, I thank you for your time by calling me after my
visit to YOllr property on Wednesday the 4th of December.
As we discussed during our telephone conversation to apply
for a building permit and zoning permit for the addition
to your horne, you need to contact the Township Secretary
Alverda Ocker, telephone number, whatever.
The second paragraph says, also during our
conversation you had inquiry to whether the Township had
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any ordinances on unlicensed or inoperable motor vehicles
parked outside any structure.
I did not inquire about that. Mr. Danner
came on my property and flat out told me to get rid of
my automobiles. Mr. Danner is the one that instituted
this conversation pertaining to the inquiry of any
Ordinances.
Q Well, I think your testimony was that when Mr.
Danner was first on the property on December 4th or
thereabouts your son was the one that was home. Is that
right?
A That's correct.
Q And then you called Mr. Danner?
A And then I called Mr. Danner, but I called him
in reference to the statement that he had made.
You see, Mr. Danner is making it sound as though
I'm the one that had called him to inquire as if there was
a Motor Vehicle Ordinance in Hopewell Township. And, Mr.
Danner was the one that instituted, instigated all this.
I'm not the one that inquired. I'd still be
living out there at 217 Zion Road working on my classic
automobiles. I wouldn't be sitting here if Mr. Danner
hadn't come out there. And it wasn't strictly to enforce
a Vehicle Code, it goes a little deeper than that. But, I
didn't inquire.
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Q In that conveJ:sution you asked about provisions
of the Ordinance, did you not?
A In our telephone conversation, that's correct.
I asked him at that point, since he had told me that they
had an Ordinance that I was to get rid of my vehicles.
In hore he implies that I inquired, I didn't
inquire. I asked him for proof of what he came out and
told me that I had to do. - .anted him to substantiate
what he was telling me,
Q In this December 6th, 1996, letter there's a
reference to specific provisions of the Zoning Ordinance,
are thero not?
A It says also during our conversation inquired as
to whether the Township had any Ordinances on unlicensed,
inoperable motor vehicles parked olltside any structure.
The Hopewell Board of Supervisors has passed a
Zoning Ordinance that covers the subject under Article
1103, Page 66 and 67, which we have here,
As the Ordinance reads the storage of
unlicensed, inoperable vehicles for more than thirty (30)
days is prohibited.
Once again, there's no date on there pertaining
to when it went into affect or anything like that.
Q But, there were enclosed copies of the Ordinance
provisions that Mr. Danner refers to?
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A I believe.
Q Are there not?
A I got a letter. I got that letter after those.
Now, I did get that letter.
Q You're saying you got copies of the Ordinance
before you got this December 6th letter.?
A It wasn't certified. Nothing was certified.
It was just the copies were sent to me and that's why I
called him, No, as a matter of fact, I'm sorry. I'm
sorry, That letter was with it. I'm sorry. I stand
corrected, That letter was with them, that's why I
called him asking him for the date. You're exactly
right..
Q And, you said that Mr. Danner told you t.hat if
you had a question about the exact adoption procedure of
the Ordinance you could check with Mrs. Ocker. Is that
correct?
A We had a conversation. Mr, Danner, after he had
dropped off the letter, once again, once the building
permit was approved. Mr, Danner. had come to my home. It
was a Saturday morning, I wasn't there.
Q Was that sometime after December 6t.h?
A Yes.
Q WctS it before June 21st, 19977
A My wife was the one that received the letter.
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MRS. BRESKI: It was dated that day.
MR. RUNDLE; Ma'am.
BY MS. WINDER:
A I'm sorry. Sorry. It was probably that day.
It was a Saturday. That's when he delivered it.
Q So, Mr. Breski, are you telling us that the June
21st, 1997, Notice of Violation was hand-delivered to your
wife?
A Yes. A copy of this was hand-delivered along
with a building permit being okayed by the Township,
Q And on the bottom of the June 21st letter it
notes that there are attachments, letter dated December
6th, 1996, Zoning Ordinance, Page 66 and 67. Is that
right?
A That's correct.
Q And were those things included with that
letter?
A With this second letter?
Q Yes.
A I don't believe.
Q You don't recall?
A I don't recall. I don't recall that. I know I
had gotten the three copies.
Q In that Notice of June 21st were you told that
the violation that's alleged or being told to you is a
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violation in that letter, is a violation of Article II,
Section 11.03C for keeping unlicensed, inoperable or
junked motor vehicles on your property?
A Are you asking mt if Mr. Dannor told me that
when he delivered this?
Q No. I'm asking you if that's in that letter?
A If that's what this letter implies.
Q If there's a reference to a specific article and
number?
A I'm sure it does. I'm sure it does.
Q Okay.
MR. WEBBER: In the interest of brevity.
THE CHAIRMAN: Excuse me,
MR. RUNDLE: Are you objecting?
MR. WEBBER: Yes. I'm going to object. In the
interest of brevity, The document speaks for itself. I
don't b~lieve we have to have the witness testify as to
everything that's in the "Jtter, It was already admitted
into evidence.
Now, if there's questions in addition to
what's contained in the letter, then that's a different
matter.
MR. RUNDLE: The document does speak for itself.
THE CHAIRMAN: I'd like for Ms. Winder to
continue with your question.
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BY MS. WINDER:
Q And, Mr. Breski, does the letter also tell you
that you have thirty (3D) days to correct the violation?
A It says I am making you aware by means of this
letter that if these violations are not corrected within
thirty (3D) days from receipt of this Notice the Township
will have no other choice than to file a citation with the
District Justice,
Q And does the letter further say that you may
appeal this Notice to the Zoning Hearing Board?
A I think the wording is exactly that, you may
appeal. It doesn't say that I should appeal, that I have
to appeal, that if I don't appeal that the interest of
these vehicles will be negative in my favor, It says you
may appeal,
Q And, it says that you need to do something
about this situation within thirty (3D) days, doesn't it?
A If that's what it 3ays.
Q And it does tell you that if you have any
question about this Notice you may call Mr. Heberlig, as
the secretary of the Zoning Hearing Board, or you may
contact Mrs. Ocker, the Township secretary, does it
not?
A It says that.
Q And it asks you for immediate cooperation?
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A It says, Please address this situation
immediately to avoid further action.
Q Now, you read that Notice, didn't you?
A That's correct,
Q Didn't that Notice make you aware that the
Township was asserting or telling you that there was a
violation and that you had thirty (30) days to do
something about it, and that you needed to address this
situation within thirty ( 30) days?
A I guess you could look at it that way.
Q And if you didn't agree that there was a
violation you could appeal that to the Zoning Hearing
Board?
A Yes.
Q And contest Mr, Danner's statement or allegation
that this was an improper and prohibited use?
A No guest ion about that, but I didn't really
feel--
Q That was your understanding?
A I didn't really feel the need for that since Mr.
Danner understood that those vehicles were on that
property long before the Ordinance went into affect.
THE CHAIRMAN: What's your point?
BY MS. WINDER:
Q Did you do anything within thirty (30) days of
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1 June 21st?
2 A I had contacted Mr. Danner numerous times,
3 expressed to him the fact that these vehicles had been
4 with me for a long time, and the fact that he understood
5 that I had expressed to him, explained to him on the
6 telephone numerous times that those cars have been out
7 there since we moved there,
8 They were there long before the adoption of the
9 Ordinance in 1991. And, I wanted Mr. Danner to express to
10 me why I had to get rid of vehicles that were there,
11 That, number one, I do not have a junkyard. Number two,
12 they're for my own personal pleasure along with my
13 children who are now out of high school,
14 Two of them are out of college and one is in his
15 second year in college. And eventually they're going to
16 be taking a couple of those cars and doing whatever they
17 want to do with them,
18 Q And you stated that your sons drove these
19 vehicles while they were in high school?
20 A That's correct. My wife drove a couple of them
21 too. That's right.
22 Q And that they were parked after that time?
23 A That's not true. I didn't say anything about
24 them being parked after that time. They could have been
25 parked, if you're in reference to the one vehicle. If you
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MR. WEBBER: The appeal was filed and I believe
the reoord will show that the document itself was filed on
September 10th, 1997.
I had made a telephone call to Mr. Heberlig in
accordance with the Enforcement Notice on the 8th. There
was a question as to the filing fee, and I found out the
answer to that either later that night or the next day and
we filed the appeal.
THE CHAIRMAN: Thank you. Ms. Winder.
BY MS. WINDER:
Q And, you talked to counsel before July 22nd
about this Enforcement Notice of June 21st, 1997, didn't
you?
A I'm sure I did,
Q And was it suggested by you to counsel that you
should be permitted to have these vehicles because they'd
always been on your property?
MR. WEBBER: I'm going to object. Attorney
client privilege applies here as to any communications
between an attorney and client.
THE CHAIRMAN: I respect that.
BY MR. WINDER:
Q Mr. Breski, did you ever come to the Board of
Supervisors and request that there be any certification of
your property or your use of your property as a
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norconforming use?
A Well, I felt that since I had talked to Mr.
Danner, who is the Zoning Officer, that he would have at
least put it in writing pertaining to what I had expressed
to him, and that he would then pass it on to the Zoning
Hearing Board or whatever, whoever,
Once again, you know, these vehicles have been
out there long before this April '91 ordinance. I realize
what you're doing,
Q The answer to my question is, you never came to
the Board and made that request?
A I realize what you're doing. I personally, no.
I personally, no, but I had suggested to Mr, Danner.
Q You never contacted Mr. Heberlig within thirty
(30) days of the date of that Notice?
A No, I didn't.
Q About filing with the Zoning Hearing Board, did
you?
A No, I didn't because I felt that Mr. Danner was
going to do something with the information that I had
given him pertaining to the fact of how the vehicles got
there, how they were handled, what we had been doing with
them, etc.
Q And you were served with a District Justice
Complaint filed by the Board of supervisors in violation
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of the Zoning Ordinance, weren't you?
A That's exactly right.
Q And that happened somewhere between the 6th and
the 10th of August?
A If those dates are correct. I'm sure they're
correct. You're telling me they are. I don't know. I
don't have any papers in front of me. You know what I
mean, 1 don't have my papers in front of me, so that
I can look through there and see exactly what array
that all this stuff happened, what order it happened
in.
Q Do you recall getting a copy of that District
Justice Complaint?
A I certainly did.
Q And did you consult with counsel about that
Complaint?
A I had given it to my attorney. Yes,
Q And did you, at that point, file any notice with
the Zoning Hearing Board or appear before the Board of
Supervisors making any request--
A I think once I got the citation--
MR. RUNDLE: Mr. Breski, let me stop you there
for a second. Okay? We have a stenographer here who is
doing a service in trying very hard to take down
everything that is said.
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MR. BRESKI: I'm sorry.
MR. RUNDLE: Ms. Winder is asking a question of
you.
MR, BRESKI: Okay.
MR. RUNDLE: Please let her finish the question
and then respond so the stenographer can take it down.
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7 MR. BRESKI: I'm sorry.
8 BY MS. WINDER:
9 Q Did you, after receiving the District Justice
10 Complaint, contact the Board of supervisors, appear at a
11 meeting of the Board of Supervisors, or file with the
12 zoning Hearing Board ailY notice or communication prior to
13 September 10th?
14 A No, I didn't. Basically what I did was give the
15 citation to my legal counsel, my attorney, and that's
16 where it ended as far as I was concerned. It was a legal
17 matter from there on.
18 Q Did you go to Mrs, Ocker's house or contact her
19 to look at the entire Zoning Ordinance?
20 A Well, Mr. Danner had read the entire Zoning
21 Ordinance to me over the phone. And, of course, there was
22 nothing mentioned there about any grandfather clause or
23 anything, which is when I had asked him about that. And,
24 he said he didn't have a copy to send to me.
25 But, to answer your question, no, I did not go
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to Mrs. Ocker's home because he had read verbatim to me on
the phone exactly what it said. And, it didn't seem I had
to go up there, since it really didn't tell me a whole
lot, other than the fact of what was basically in this
Ordinance without the date, And, of course, I had then
relayed that information to my attorney.
Q When did you relay that information?
A I guess it was just about the time when I took
the citation over to him.
Q But, you had been provided copies of the
Ordinance sections in December and again in June/ had ynu
not?
A Well, yes, Yes. In J'une was a follow-up to
what I had requested earlier, in an earlier conversation.
Q And did you understand from reading the June
21st Notice of Enforcement that the Township would take
action by filing an action with the District Justice if
you did not address this situation?
A Did I understand it? I'm not really sure if I
understood. There were three different paragraphs there.
One was telling me you may appeal, the other one was
telling me you should do something immediately, and the
other was telling me--
I mean, at one point they were saying it's okay
and the other point--as far as how I'm reading it. You
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may be reading that a little differontly.
Q You're saying that you thought that it was okay
for you to have the cars on your property?
A I didn't say that. Well, I feel that it's okay.
I don't see any reason why I couldn't have those vehicles
on my property,
Q Is your property a residential use?
A I don't know. When I bought the property some
20 years ago, you tell me if it's been changed, if the
Ordinances have changed over the last 20 years?
Q I'm asking you whether or not your property is a
residential property?
A I would say that it probably is now.
Q And you've lived at that property since 1987.
Is that correct?
A Somewhere around there, yes. That's Wh~'l I
built the home in '87,
Q And you've placed vehicles on that property
which are unlicensed, inoperable after 1991, have you
not?
A I think we went over this before. It was a Jeep
you're in reference to. I think it was a Jeep that you
were in reference to.
I bought two vehicles. I bought two vehicles
after '91. One of them was a Jeep I want to use for the
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property to put a ploW on and ploW the snow off the
driveway.
The other one was a '66 Mustang, that I think I
mentioned to you that we just recently purchased, my son
and I, some months ago. It's a '66 Mustang Convertible.
But, I might add it's licensed and operable.
THE CHAIRMAN: I'm sorry, say that again?
MR, BRESKI: It is licensed and operable.
THE CHAIRMAN: The Mustang?
MR, BRESKI: The Mustang. There are other
vehicles that are licensed and operable,
BY MS. WINDER:
Q Is the '66 Mustang licensed?
MR. WEBBER: Mr, Chairman, I'm going to object
to the question relating to the merits of the case. My
understanding was that we were dealing with the timeliness
issue, And, my questions on Direct Examination dealt with
that particular issue and no others. I think we're beyond
the scope of that.
THE CHAIRMAN: I agree. Ms. Winder?
MS. WINDER: I have no other questions of this
witness, at this point.
THE CHAIRMAN: Are there any other people here
that are speaking objecting to this testimony?
MR. WEBBER: Excuse me, Mr. Chairman. May I ask
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a few questions on Redirect Examination of this witness?
THE CHAIRMAN: Let me see if there are other
people who object to this testimony.
MR. RUNDLE: Just wish to question not object,
THE CHAIRMAN: Wish to question.
(No response.)
'l'HE CHAIRMAN: Any Board Members, at this point?
(No response,)
'rHE CHAIRMAN: Okay. Do you have something else
you want to add?
MR. WEBBER: I wanted to ask him a few follow-up
questions based on the questions that Ms, Winder asked him
on Redirect Examination.
THE CHAIRMAN: Yes. Go ahead. In the interest
of time, move along.
REDIRECT EXAMINATION
BY MR. WEBBER:
Q Mr. Breski, there were some questions as to
whether or not you received a copy of the Ordinance from
the Township, and I wanted to clarify it. Did you receive
a copy of the entire Ordinance at any time from the
Township?
A No, sir, I didn't.
Q Were there copies of any other Ordinance
sections, which were delivered to you, other than what
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were on Exhibitq A2 and A3, that were provided to you here
this evening?
A No.
Q Mr. Breski, you were asked some questions about
Exhibit A1, which was the letter dated June 21, 1997.
Could you read for us Paragraph 4, please?
A It says I am making you aware by means of this
letter that if these violations are not corrected within
thirty (30) days from receipt of this Notice the Township
will have no other choice than to file a citation with the
District Justice.
Q And the Township did, in fact, file a citation
with the District Justice. Correct?
A That's correct,
Q Now, in that paragraph or anywhere else in this
Notice, were you informed as to the specific consequences
of a District Justice action against you?
A No, sir.
Q And please read for us Paragraph 5 of that
letter?
A Paragraph 5 simply states that you may appeal,
and they have it underlined, underscored. You may appeal
this Zoning Enforcement Notice to the Hopewell Township
Zoning Hearing Board by contacting the Board's Secretary,
Lance Heberlig, 24 Shuman Road, Newburg, or by telephone
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at 423-5393.
Q And there is no time period listed for you in
which to file an appeal, Correct?
A No.
Q And is there anywhere else in that Notice that
states how much time you have to file an appeal?
A No.
Q And you did, in fact, authorize me to file an
appeal for you. Correct?
A That's correct.
Q Now, also in Paragraph 2 there's a reference to
some unlicensed vehicles of yours,
Was there any othor document, aside from this
one, that listed the specific vehicles that the Township
wanted you to remove from your property?
THE CHAIRMAN: Excuse me. Is this in relation
to the timeliness issue again because that's what we're
trying to stay on?
MR. WEBBER: Well, it's in reference to the
validity of the Enforcement Notice issue and he was asked
some questions pertaining to the contents of the letter.
THE CHAIRMAN: Alright.
MR. BRESKI: Do you want to ask me again?
BY MR. WEBBER:
Q Were you ever provided with a specific list of
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the vehicles that the TownRhip considered to be in
violation?
A No, From day one when Mr. Danner came out to my
property he wasn't concerned about any vehicles. He
wasn't concerned about years of vehicles, which ones had
license plates on,
He WaR just telling me that anything that was
inoperab1e-- He was just-- You've got to get rid of the
vehicles. And I had asked him, Well, which ones would you
like me to get rid of? And, you know, he really didn't
specify, He jURt said, You've got to get rid of all your
junked vehicles,
MR. WEBBER:
THE CHAIRMAN:
MR. RUNDLE:
MS. WINDER:
THE CHAIRMAN:
No further questions at this time.
Thank you,
Any Recross, Ms. winder?
No,
Does the Zoning Officer wish to
make a statement at this point?
MS. WINDER: We would choose to call the Zoning
Officer as a witness, at this point, on this issue.
THE CHAIRMAN: Alright, You can stay there or
you can come to the table, whatever is comfortable for
you.
whereupon,
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letter?
A Yes, mEl'am.
a And one of those provisions is 11.03C
prohibition against inoperElble, unlicensed or junked
vehicles?
A Yes, ma'am,
Q Unless they are completely wi thin an enclosed
structure. Is that correct?
A Yes.
a Did Mr. Breski in December 1996 tell you that
those vehicles were a nonconforming use, which you should
certify as nonconforming under the provisions of the
Ordinance?
A No.
Q Did he tell you that all of those vehicles were
classic vehicles that he was working on and therefore he
should be entitled to have those vehicles on his property
regardless of the Ordinance provisions?
A No, not in those words. He just claimed they
were his vehicles there,
a He claimed that they were his vehicles there?
A Yes.
a Did he say that they were all operable vehicles?
A No.
Q Did he agree that there were unlicensed
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Q Is that the only time that you talked with him
about these vehicles until June of 1997?
A Yes. About the junked vehicles. Yes. We were
working on another issue, zoning permit and a building
permit .
Q And so you had talked with him about that
matter?
AVes.
Q Now, you hand-delivered a copy of this June
21st, 1997, Enforcement Notice to Mrs. Breski. Is that
correct?
A Yes.
Q Did you speak with Mr. Breski on June 21st,
1997, to the best of your recollection?
A Mrs. Breski. Yes.
Q Mr. Breski?
A Mrs, Breski. Mr, Breski called me on the phone
after I had got home.
Q And that would have been on the 21st of June of
this year?
A Yes, on a Saturday. I thought that was a pretty
reasonable time to stop by.
Q And did he acknowledge that he had seen this
Notice?
A Yes.
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Q And read it?
A Well, not in part.icular words lik8 that.. He
received it. He was inquiring about. what all was in it,
so he had to read it.,
Q Did he tell you that he t.hought you should
cert.ify t.hat his property was a property for storing cars
as a nonconforming use?
A Well, I see we talked. I asked him about
whether he was running a repair business. He indicated
not.
He went on about the grandfather clause,
something about him being able to have stuff there before
the Ordinance. And then he indicated, will not remove the
vehicles or build a st.ructure to enclose them.
MR. BRESKI: Excuse me.
THE CHAIRMAN: I'm sorry?
MR. BRESKI: I can't hear what he's saying.
BY MS. WINDER:
A I'm not saying it loud enough. Excuse me.
First one I said was, I asked him about
operating the business, and he said it is not a repair
business. Then he went on about a grandfather clause, and
that I don't know nothing about, I'm enforcing the Zoning
Ordinance itself,
And he also indicated he will not remove the
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vehicles or build structures to enclose. They are allowed
to be on the property if they are enclosed in a structure,
Now, that's something that wasn't pointed out on a lot of
items. Does that answer your question?
Q It does. And, did you advise Mr. Breski that
if he disputed the June 21st, 1997, Notice of Viol~~ion
that he needed to file an appeal with the zoning Hearing
Board?
A Yes, I did in the letter.
Q Did you tell him that in your telephone
conversation?
A
item.
I can't particularly remember that particular
Q Did Mr. Breski ask you for a full and complete
copy of the Ordinance?
A Yes. And I told him they're available at Mrs.
Ocker's and he was free to sit down there and look at it.
She has a carport, Sit there and look all you want to at
the Zoning Book or buy one,
Q Did you, at any time, tell Mr. Breski that it
was okay for him to continue to have those vehicles
sitting on his property as you had seen them?
A No,
Q Did he ever ask you to address the Board Of
Supervisors on his behalf or the zoning Hearing Board on
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his behalf?
A No, ma'am,
Q Did he ever lead you to believe that he thought
that you would approach the Board of supervisors on his
behalf or take any action with respect to the vehicles
sitting on his property, which would negate your Notice
that he was in violation of the Township Ordinance?
A No.
THE CHAIRMAN: Ms. Winder, are you still
addressing the timeliness issue?
MS. WINDER: Yes.
THE CHAIRMAN: Thank you, Do you have other
questions?
MS. WINDER: I have no other questions.
THE CHAIRMAN: Mr. Webber?
CROSS EXAMINATION
BY MR. WEBBER:
Q Mr. Danner, have you had a chance to look at
Exhibits A1,2 and 3, as well as Exhibit T1?
A Yes,
Q And you heard Mr. Breski's testimony that he
received those particular items from you at some point in
time. Correct?
A Yes.
Q And other than those exhibits, were there any
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other written documents that you either mailed to him or
served upon him relating to these unlicensed, inuperable
and/or junked vehicles?
A Well, the December 6th letter, which you have as
Exhibit T1, including all the attachments that were with
it, parts of the Zoning Ordinance; and the 21st of June
Violation Notice, sent that one. And, in relation to the
junked vehicles, inoperable, unlicensed junked vehicles,
no.
Q Okay. But, you did have some verbal
conversations and then you supplied him with these
exhibits?
A I have another set of letters dealing with
building ann zoning permit requirements.
Q That's a separate matter. Correct?
A That's why I said, no,
Q I just want to clarify your testimony on the
discussions relating to the nonconforming use and the
grandfather clause. Isn't it true that Mr. Breski
discussed with you the "grandfather clause"?
A The day of the 21st that he phone called me,
that's where he was going into the grandfather clause.
And I'm not an attorney nor know the law about a
grandfather clause. I ~now what the Zoning Ordinance says
and it doesn't have that word in it.
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Q Okay. But, the qist of what he was telling you,
Mr. Danner, was that he had used this property in this
manner prior to 1991. Correct?
A He claimed he was exempt from the Ordinance.
Q And for that reason, Correct?
A Well, he claimed that he was exempt from the
Ordinance. He didn't detail what,
THE CHAIRMAN: Mr. Danner. Could you rephrase
your question in another way?
BY MR, WEBBER:
Q Isn't it true that Mr, Breski felt that he could
use his property in this manner because he had uBed it in
this manner prior to the adoption of the Zoning Ordinance?
A Well, we didn't talk very much, It come up
about the grandfather clause, I think a couple other
people got on the phone, and basically we got away from
talking about anything about the grandfather clause,
because I didn't know what it really meant.
Q Okay. But, the bottom line is he felt he was
entitled to use his property in this manner because he had
been using it in previous years, and in years prior to the
adoption of the Ordinance?
A Well, he indicated to me he was not using it as
a repair business. I already said that.
MR. WEBBER: No further questions.
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'IIHE CIlAIRMAN: Members of the Board?
MR. RUNDLE: If I may, Mr. Chairman?
THE CIlAI RMAN: Sure.
CROSS EXAMINATION
BY MR. RUNDLE::
Q Mr. Danner, did Mr. Breski ever specifically ask
you to register the use of his property as a storage area
for vehicles as a nonconforming use under the Ordinance?
A No.
Q Did you ever receive any request in writing from
Mr. Breski to register his property as a nonconforming
use for any purpose?
A
No.
MR. RUNDLE: That's all, Mr. Chairman.
THE CHAIRMAN: Mr. Danner.
MR. BRESKI: Can I say something?
THE CHAIRMAN: No, sir. Thank you.
CROSS EXAMINATION
BY THE CHAIRMAN:
Q Mr. Danner, in your letter of the 21st.
A The enforcement letter.
Q Whatever the Exhibit is.
A Tl.
Q There's a paragraph that says you may appeal
this Zoning Enforcement Office Notice to the Hopewell
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Township Zoning Hearing Board.
Was there any particular reason why you
didn't tell Mr. Breski that he had thirty (30) days to
appeal?
A Well, the common sense in reading the letter,
when I put in there about the thirty (30) days, he had to
do something within thirty (30) days, whether it was
contact the Supervisors, appeal it. which I already said
you may appeal, or the Township Supervisors would probably
be taking action at the District Justice. And I think I
heard he clearly understood that that's what that thirty
(30) days meant.
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Q Are you aware that--and correct me here if I'm
wrong--that the Municipal Code requires that the recipient
of the Notice has a right to appeal to the Zoning Hearing
Board within a prescribed period of time within accordance
with the procedures set forth in the Ordinance?
A And I spelled it out/ thirty (30) days.
Q You're saying that you told him, you felt you
told him he should appeal within thirty (3D) days?
A He should take action, correct the violation,
come to the Supervisors or appeal within thirty (30) days
or something is going to happen.
THE CHAIRMAN: Okay. other questions from the
Board?
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(No response.)
MR. WEBBER: Mr. Chairman, may I ask a question
to follow-up on a question asked of Mr. Danner by your
solici tor?
THE CHAIRMAN: Go ahead. I'll allow that.
(Whereupon, Applicant's Exhibit No. 4 was marked
for identification.)
CROSS EXAMINATION (Continued)
BY MR. WEBBER:
Q Mr. Danner, you were asked a question about
whether or not Mr. Breski had asked you to register his
use as a nonconforming use. Correct?
A Mr. Breski.
Q Do you recall the solicitor for the Zoning
Hearing Board, Mr. Rundle, asking you that question?
A He asked, Mr. Breski. Mr. Breski asked it. If
you're referring to your letter?
Q Yes. I'm going to refer to that and I'm going
to hand you what has been labeled as Exhibit A4. I'm
going to ask that you identify that exhibit for us. Would
that be the letter dated July 22nd from me?
A Yes, and it is postmarked July 23rd, that it was
mailed from the Newville Post Office.
Q And you did, in fact, receive a copy of this
letter, which has been labeled as Exhibit A4?
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A Yes.
Q And in that letter, isn't it true, that I
articulated Mr. Breski's position that he felt this was a
valid nonconforming use?
A They're classic vehicles which are being
restored.
Q Could you read Paragraph 3 for us, please?
A As such, the Breski's use of their property in
this manner constitutes a "nonconforming use", which is
permitted by the Ordinance.
Q In the final paragraph I ask you to please
contact me to further discuss this matter, did I
not?
Yes. Please contact me to fur.ther discuss this
A
matter.
Q And isn't it true that you did, in fact, call my
office?
A Yes.
Q Somewhere around the time you received the
letter?
A That would have probably been on the 23rd or
24th.
Q And you indicated during that telephone message
that you had turned that over to your Solicitor. Correct?
A On the 2Jrd. Indicated to you that the Township
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Board of Supervisors have already decided to ask the
Solicitor to file a Complaint with the District Justice.
And I directed you to contact Sally Winder in all contacts
in this matter from now on/ because it was now in
judicial.
Q Now, is it your testimony that you on that phone
message told me that the Board of supervisors had
authorized an enforcement action?
A Yes, they authorized it.
Q My question was whether you mentioned that in
your telephone message to me?
A Yes, I did. The Supervisors had already decided
and then I toJ.d you to contact Sally Winder in this
matter.
Q But, you're telling us here tonight that you/ on
that answering machine message/ indicated that the Board
of Supervisors had already voted to file an enforcement
proceeding?
A Yes, but it was not filed yet.
MR. WEBBER: No further guestions.
THE CHAIRMAN: Is there any other testimony or
evidence?
(No response.)
MR. WEBBER: We move for the admission of
Applicant's Exhibit A4.
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MS. WINDER: We'd move for Exhibit Tl.
MR. WEBBER: No objection.
THE CHAIRMAN: What is Exhibit A4?
MS. WINDER: A4 is the July 22 matter.
(Whereupon, Applicant's Exhibit No. 4 and
Township's Exhibit No.1 were admitted into
ev idence. )
THE CHAIRMAN: Hearing that there's no further
evidence or testimony, I'm going to ask that the Board go
into executive session for discussion.
We will adjourn at this point and we will
reconvene when we finish that executive session.
MS. WINDER: I'd ask for an opportunity to
address the Board. Mr. Webber has given you certain
issues and I have not had an opportunity to address you on
this issue of timeliness.
MR. RUNDLE: Counsel will have a short argument
on the issue of timeliness, both counsel.
THE CHAIRMAN: Short. Please understand that
the issue that's in front of the Board at this point is
timeliness and that's what we tried to keep the
conversations about tonight. So, let's huld it to that.
MS. WINDER: I understand that you're reading
from the Municipalities Planning Code and reading down a
checklist, which is essentially a verbatim list that is
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also in the Ordinance.
I would point out that the MPC does not specify
exact magic language which must be contained in every
Notice. It tells in general what kinds of things need
to be told to a land owner who is being cited for a
violation.
The Commonwealth Court in a recent decision, the
Fratus case, has said that where a land owner who is
notified does not appeal the Notice, the Enforcement
Notice, which would be the June 21st letter in this case,
to the Zoning Hearing Board, the issue of whether or not a
violation exists is not then before the Court in an
Enforcement Action.
The Enforcement Action that was taken by the
Township in this case was filing the citation in the
District Justice Court.
The District Justice must accept a given or a
fact already established that a violation existed because
the land owner did not address that issue before the
Zoning Hearing Board.
The Municipalities Planning Code says that that
is the procedure to be followed.
The Fratus Case dealt with a land owner who did
not appeal a Notice to the Zoning Hearing Board, who was
cited in the District Justice Office, who appealed that
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citation to the Court of Common Pleas, which is the normal
course of appeal.
The Court of Common Pleas then assessed daily
penalties for additional days of violation. And, the
land owner attempted to have that continuing assessment
decision remanded and addressed the issue of whether or
not the violation existed.
And the Commonwealth Court said that the
recourse to address that issue is on appeal before the
Zoning Hearing Board, it is not in the Court of Common
Pleas. And the only thing before the Court of Common
Pleas is the interpretation of the penalty provisions.
The Court further goes on and says, although
this is not the decision in this case, that the Zoning
Hearing Board would then look at the Notice and whether
or not the land owner understood and had an opportunity
to know what procedure was involved and therefore could
exercise his rights to ask for a determination of the
violation before the Zoning Hearing Board.
The Commonwealth Court in another case, the
Three Rivers Case. It's Three Rivers Aluminum Company
versus the Zoning Hearing Board of Marshall Township, and
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it's a 1992 Commonwealth Court Case/ has addressed the
interpretation of the requirements of the Zoning Ordinance
as it's set out in our Ordinance, which is basically the
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same provisions that the MPC sets out in the section that
you were looking at and referring to.
In that case the Commonwealth Court says that to
cite a violation means to tell the land owner what section
of the Ordinance says that there is a violation.
so, I'm suggesting to you that Mr. Breski does
not have to be given a full and complete copy of the
Ordinance. He needs to be told what section of the
Ordinance he is being cited for and in general what that
means, and this Notice told him that.
He was sent copies of those sections, so that he
would be aware of the language of the Ordinance. And not
only did it happen once, he'd been sent those same
provisions in December.
The second thing that was complained about in
the Three Rivers Case was this thirty (30) days to appeal.
That issue was addressed by the Commonwealth Court.
The Three Rivers argument was that the Notice of
Enforcement should be set aside because the exact wording
of the Code provision was not repeated in the Enforcement
Notice. The Commonwealth Court did not do that.
The exact language of the Notice that was given
by the Township to Three Rivers company is not in the
decision, but the language of the decision says that the
company did appeal, they did have an opportunity to be
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heard, and the Notice will not be set aside and the entire
matter dismissed.
MR. RUNDLE: Let me stop you there for a second,
Ms. Winder, okay, so I can get the distinction of what
you're saying here.
I believe the Court in Three Rivers said that
the land owner filed the appeal and got a full and fair
hearing; therefore, there really wasn't an issue of
timeliness involved because the appeal was filed and the
hearing was held.
Now, in this particular case/ I believe you are
taking the position on behalf of the Township that we
should not get to the merits of this particular appeal
because it was not timely filed. Is that correct?
MS. WINDER: Yes.
MR. RUNDLE: Okay. The only section of the MPC
that deals with timeliness states that an Enforcement
Notice shall state at least the following: That the
recipient of the Notice has the right to appeal to the
Zoning Hearing Board within a prescribed period of time.
Could you argue to the Board the document that
is marked as AI?
MS. WINDER: AI?
MR. RUNDLE: AI. Where in the document does it
state that the land owner has the right to appeal within a
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prescribed period of time?
MS. WINDER: The clear understanding of the
document as a whole, on its face, tells the land owner
that, and Mr. Breski's testimony was here tonight that he
understood that. He understood that he needed to take
action within thirty (30) days.
The Commonwealth Court doesn't say thou shalt
state in your Notice--
MR. BRESKI: Excuse me.
THE CHAIRMAN: Please. You'll have an
oppor't.uni ty.
MS. WINDER: --You must appeal to the Zoning
Hearing Board by filing a Notice by such and such a date.
The object of the provisions in the
Municipalities Planning Code, clearly by the Commonwealth
Court decision, is that the land owner needs to be advised
of what he must do and what the violations are.
And, in this case, the wording of the Notice is
that he has thirty (30) days and that he may appeal to the
Zoning Hearing Board.
And I think that the entire content of the
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Notice is clear that the time for taking action is
immediate and that the limitation is thirty (30) days,
because if action is not taken then the Township will
proceed to take action in the District Justice Office.
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If the Board feels that the requiremont of the
Municipalities Planning Code is precise language which
says you must appeal this Notice within thirty (30) days
of the date of this letter by filing a Notice of Appeal
with the Zoning Hearing Board, the Commonwealth Court has
further said that once a person learns of their rights
they have thirty (30) days to filc" an <lppeal. And that
language, read in conjunction with these Notice
requirements, makes it clear that the thirty (30) days and
the notice to the land owner means that once the
land owner is aware that there's a thirty (30) day period
involved they need to take action.
And our position is--as Mr. Broski has said, he
knew that on June 21st, he certainly knew it within the
timeframe of that thirty (30) days. And this whole issue
of whether or not there was a violation, he had discussed
with counsel.
THE CHAIRMAN: Thank you. Mr. Webber.
MR. WEBBER: I submit to the Members of the
Board that the reason for the provision in the statute
requiring that the timeframe for appeal is spelled out,
that the whole reason and rationale for that has been
manifested here this evening. It's to prevent the
Township from then later coming in and saying, Oh, you
didn't appeal timely.
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Here we have a Township which clearly did not
tell Mr. Breski he had thirty (JD) days to appeal the
Enforcement Notice.
There's no dispute looking at Exhibit Al that
that Notice fails to state that.
THE CHAIRMAN: May I ask you a question? Are
you prepared to say that your client did not know that he
had thirty (3D) days to appeal this decision rendered in
the June 21st letter?
MR. IvEBBER: I/m not necessarily saying that. I
am saying that the Enforcement Notice requirements are to
be strictly construed and that--
THE CHAIRMAN: I know what they are. I'm aSking
you a specific question about your client's knowledge of
his appeal procedure.
MR. WEBBER: He stated in his testimony and Ms.
W.inder mischaracterized that testimony, but he stateu that
he wasn't sure what the Notice was.
THE CHAIRMAN: Thank you.
MR. WEBBER: There are two or three provisions
there and he wasn't exactly sure what to do. There are a
tremendous amount of lengthy requirements in the Notice.
The statute says there needs to be at least those six
items, one of which deals with the timeliness of filing an
appeal to the Zoning Hearing Board, and one which deals
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with the penalties.
(Short pause for the stenographer to
change paper.)
MR. WEBBER: The cases that I submitted in my
opening statement I believe are directly on point. They
address this issue specifically.
The case of Conewago Township versus Buckloo is
very close in a factual situation to this particular
situation, looking or comparing the notices that were
submitted by Hopewell Township and the one that was
submitted by conewago Township.
But, all of the cases that I submitted stand for
the proposition that that Enforcement Notice Requirement
or the elements that have to be put into an Enforcement
Notice have to be there. You have to put at least those
six items in the Enforcement Notice, and that is the first
point in which the fact finder has to look.
And in addition to our contention that the
Township has waived the timeliness issue, these cases
furthermore stand for the proposition that the Township
action itself has to be dismissed where those requirements
were not met.
So, in addition to our argument about the
timeliness, I submit that this case should be dismissed by
this Board for that very reason as articulated in these
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cases.
THE CHAIRMAN: Thank you. We're now going to
adjourn into executive session. You may relax outside,
the best you can. Our facilities are not very conducive.
(Recessed at 8:40 p.m. for an execution
session, and reconvened at 8:55 p.m.).
MR. RUNDLE: Let the record show that the Board
is reconvening at 8:55 p.m.
And, I believe, Mr. Chairman, before any motions
are taken in this respect that it should be announced that
Mr. pyne has determined that he must recuse himself from
deliberating on this particular case, because he has been
in the past a client of Mr. Webber and feels that it would
be inappropriate for him to take part in the decision in
this case. Is that correct, Mr. Pyne?
MR. PYNE: That's correct.
THE CHAIRMAN: Alright. I'm going to put forth
a motion here before the Board, that the Board will rule
in favor of the Applicant and that the Board will hear the
merits of the appeal at a later time to be announced with
due public process.
MR. RUNDLE: In favor of the Applicant with
respect to the timeliness decision.
THE CHAIRMAN: Yes. With respect to the
timeliness of that issue. That is a motion.
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;i<1r
I'll second the motion.
I'm going to call for a vote.
MR. HEBERLIG:
THE CHAIRMAN:
Those in favor say aye.
MR. HEBERLIG: Aye.
THE CHAIRMAN: And aye.
Now, Michael, will there be a written notice go
to these folks of the Board's decision tonight?
MR. RUNDLE: We're only part way through it, so
there's no need to issue a decision, at this point.
THE CHAIRMAN: This meeting is adjourned as far
it's content is concerned.
MR. RUNDLE: This meeting is continued.
THE CHAIRMAN: This meeting will be continued.
Thank you.
(Recessed at 8:57 p.m., and continued until
Wednesday, November 19, 1997/ at 7:00 p.m. /
at the Hopewell Township Maintenance Building.)
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CERTIFICATIOt-!
I hereby certify that the foregoing proceedings
were taken stenographically by me, and thereafter reduced
to typewriting by me or under my direction and that this
transcript is a true and aC0urate record to the best of my
ability.
~~ V~~ :tJ9P~
Cheryl F rner Donovan
Notary PUblic, Cumberland County
My commission Expires July 23, 1999
(The foregoing certification of this transcript
does not apply to any reproduction of the same by any
means unless under my direct control and/or supervision.)
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1
INDEX
2
3 l'IITNESSES
4 Joseph Breski
QIRECT CROSS REDIRt.QT RQ
6 35 58 60
40 61
65 73 85 86
8'J
88
88
90 103
115
115
5
Jeffrey A. Danner
6
7
8 Harold Bender
9
EXHIBITS
APPLICANT'S
No. 5 - Sketch of property by Mr. Breski
MARKED/ADMITTED
10
/ 65
19
18 TOWNSHIP' Q,
20
21
22
23
24
25
No. 2 - Photographs of Breski property
taken December 4/ 1996
47
/ 118
No. 3 - Photographs of Breski property
taken June 21, 1997
47
/ 118
No. 4 - Photographs of Breski property
taken September 8, 1997
47
/ 118
No. 5 - Photographs of Breski property
taken September 8/ 1997
47
/ 118
2
1 Wednesday / November 19/ 1997
2 Newburg, Pennsylvania
3 Zoning Hearing Board of Hopewell
4 Township convened for the purpose of hearing
5 Application (#1997-1) - Application of Joseph and Nancy
6 Broski to request an interpretation of section 11.03C of
7 the Hopewell Township Zoning Ordinance with respect to
8 inoperable, unlicensed or junked motor vehicles, as well
9 as sections 10.616.1C, 13.01C and 12.01C with respect to
10 the Township's handling of this matter. The property is
11 located at 217 Zion Road, Newburg, PA.
12 (Convened at 7:00 p.m.)
13
14 THE CHAIRMAN: We're all in agreement the clock
15 is slow. Good evening. We welcome you to this Zoning
16 Hearing Board meeting tonight.
17 Just a couple of things to set the order for the
18 evening. We'll remind you that this is a continuation of
19 the meeting which we held last month; however, if you are
20 planning to testify, we'll need to make sure that you did
21 sign in.
22 And, I'm going to ask now that the oaths be
23 administered to all those who plan to testify tonight.
24 So, if you would do that.
25 Whereupon,
3
1 SWEARING IN OF AUDIENCE GROUP
2 having been first duly sworn or affirmed, according to
3 law.
4 THE CHAIRMAN: Now, that that's out of the way,
5 I'd like to turn this over to counsel here for some action
6 on his part.
7 MR. RUNDLE: Lance, can you pass down the
8 exhibits?
9 MR. HEBERLIG: Yes. (Complied with request.)
10 MR. RUNDLE: Just to review with counsel first
11 the exhibits that we already have of record, so you need
12 not do them again for this hearing.
13 Applicant's Exhibit No. 1 is the letter dated
14 June 21st, 1997, from Jeffrey A. Danner, Zoning Officer to
15 Joseph and Nancy Breski.
16 Applicant's Exhibit No. 2 is Page 66 of the
17 Zoning Ordinance Booklet.
18 Applicant's Exhibit No. 3 is Page 67 of the
19 Zoning Ordinance Booklet.
20 Applicant's Exhioit No. 4 is the letter of July
21 22nd, 1997/ from Richard L. Webber, Jr., Esquire, to
22 Jeffrey A. Danner in effect requesting that the Breski
23 property constitute a nonconforming use with respect to
24 the vehicles.
25 Township's Exhibit No. 1 was the letter of
4
1 December 6th, 1996, from Jeffrey Danner to Mr. Breski.
2 Now, at this point I'm just going to give my
3 synopsis of where I feel we are this evening. And if
4 counsel have any problem with the way I view this, I'll
5 give you the opportunity to say that.
6 I view this evening now basically as the appeal
7 by Mr. Breski of the failure of the Zoning Enforcement
8 Officer to register a nonconforming use upon request on
9 July 22nd made by your Exhibit No.4.
10 You also have in here a request or a
11 challenge, a substantive challenge to the Zoning
12 Ordinance with respect to the prohibition that the Zoning
13 Officer made concerning the storage of vehicles on the
14 property.
15 Mr. Webber, do you view this any differently
16 this evening?
17 MR. WEBBER: No. That's our view.
18 MR. RUNDLE: Ms. Winder?
19 MS. WINDER: No.
20 MR. RUNDLE: Then I'll turn it over to you, Mr.
21 Webber. It would be your burdel1 to come forward with the
22 evidence.
23 MR. WEBBER: I would call Joseph Breski at this
24 time.
25 Whereupon,
5
1 December 6th, 1996, from Jeffrey Danner to Mr. Breski.
2 Now, at this point I'm just going to give my
3 synopsis of where I feel we are this evening. And if
4 counsel have any problem with the way I view this, I'll
5 give you the opportunity to say that.
6 I view this evening now basically as the appeal
7 by Mr. Breski of the failure of the Zoning Enforcement
8 Officer to register a nonconforming use upon request on
9 July 22nd made by your Exhibit No.4.
10 You also have in here a request or a
11 challenge, a substantive challenge to the Zoning
12 Ordinance with respect to the prohibition that the Zoning
13 Officer made concerning the storage of vehicles on the
14 property.
15 Mr. Webber. do you view this any differently
16
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21 Webber. It would be your burden to come forward with the
22 evidence.
23 MR. WEBBER: I would call Joseph Breski at this
24 time.
25 Whereupon,
this evening?
MR. WEBBER: No. That's our view.
MR. RUNDLE: Ms. Wir.der?
MS. WINDER: No.
MR. RUNDLE: Then I'll turn it over tq you/ Mr.
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JOSEPH BRESKI
having been previously sworn or affirmed, acaordinj to
law, testified as follows:
LlIREC'I1 EXAMINATION
BY MR. WEBBER:
Q Mr. Breski, would you state your name and
address, please?
A My name is Joseph Breski. I live at 217 Zion
Road, Newburg, Pennsylvania.
Q Where do you work, Mr. Breski?
A I'm self-employed. I'm a contractor.
Q That would be public housing?
A Horne improvements / building homes. That's
correct.
Q Could you tell us briefly about your property?
First of all, is the address 217 Zion Road here in
Hopewell Township?
A The address is 217. Of course over the years it
has changed. The post office has changed the address. It
started out-- It has had a couple different addresses.
Q But, it's now 217?
A It's now 217.
Q When did you purchase that property?
A The property was purchased, I'm going to say,
approximately 20 years ago.
6
1 Q And, just briefly describe it as far as the
2 physical characteristics of the property?
3 A The property itself is a ten and a half acre
4 tract. The home sits on a one acre tract. It's, I would
5 say/ 200 yards from Upper Mifflin Township.
6 The home that we live in is a bi-level home that
7 I built in 1987.
8 And since we moved in the howe, my wife and I,
9 of course/ had classic automobiles. She has a '68 Impala
10 Convertible that she drove.
11 Q Before we talk about vehicles, I just want to
12 make sure that the Board understands the physical layout
13 of your property.
14 A Right.
15 Q Is it a wooded lot?
16 A Basically it sits on a hill. It's wooded.
17 There's some acreage that's open and the farmer farms.
18 Q What about the neighborhood?
19 A Well, I have a neighbor that's on the east side
20 of me that has a shale pit. He has an excavation business
21 that he operates out of his home. The shale pit has been
22 there ever since he's purchased the property, so I guess
23 he uses it for commercial use.
24 Also two doors up another neighbor of mine,
25 he's a long haul truckdriver and, of course, he has a
7
1 flat bed tractor and trailer and other vohicles sitting
2 around in his yard. It/s just/ once agaill, an area that,
3 you know, there are a number of vehicles that have been
4 accumulated over the years.
5 Q What about the other side of your property?
6 A The other side of my property is basically--
7 When you talk about the other side, I'm not sure I
8 understand.
9 Q Okay. You stated there was a property two doors
10 up. Is that next in line from the shale pit?
11 A Well, the property that's two doors up/ if we're
12 going west, that's a property where at least a half dozen,
13 six, seven/ eight vehicles are parked. Vehicles I guess
14 that have been parked there for a number of years.
15 Now, the shale pit property, of course/ is on
16 the east side. There are actually four homes from the
17 time you hit zion Church Road. From the time you hit zion
18 Church you have four homes that are basically on that side
19 of the Zion Road, in that particular development, and
20 that's it.
21 MR. RUNDLE: Mr. Webber, a sketch would be
22 helpful to the Board, I'm sure.
23 MR. WEBBER: Mr. Breski, if you could just help
24 to clarify the testimony. Could you draw us a brief
25 diagram of where your property is, where the shale pit
8
1 property is, and the property that you referred to as
2 being two doors down?
3 A (Witness complied with request.) Alright. '['his
4 right here would be Zion Church Cemetery. As you can see/
5 this would represent Zion Road. This, of course, would be
6 the Turnpike. I'll show this to you in a minute.
7 The Turnpike runs parallel with Zion Road. At
8 the top of the hill here you have Zion Church Road, which
9 is located right by the church itself. So, you have a
10 church that sits right here. This is a Y in the road.
11 At this point you have a home. At this point
12 another home. I will label it here. This is the Breski
13 residence and this happens to be the Wadel residence.
14 This happens to be the Tippett residence.
15 This across from the church is the Wenger
16 residence. And, there is a new home. There is also
17 another home that sits right here. People living in
18 there, their names are will. So, you actually have five
19 homes that sit there.
20 Wenger has a one acre tract. Tippett has a one
21 acre track. Our home sits on a one acre track along with
22 9-1/2 acres. Wadel has 13-1/2 acres. He also has a 3-1/2
23 acre tract that sits in Upper Mifflin Township.
24 This Zion Road actually goes down. At this
25 point right here would be Upper Mifflin Township.
9
1 So, as you're coming down Zion Road you have
2 Will, Wenger, Tippett, Breski, and Wadel, and Upper
3 Mifflin Township.
4 MR. WEBBER: Before we go any further, I'm going
5 to ask that this sketch be labeled as Applicant's Exhibit
6 No.5.
7 (Whereupon, Applicant's Exhibit No. 5 was marked
8 for identif ication. )
9 BY MR. WEBBER:
10 Q Do you know where north is?
11 A In other words, north would be this way. This
12 would be east and this, of course, would be west, and this
13 would be the south side. (Witness indicating.)
14 Q Now, the property that you referred to as being
15 two doors down, could you just explain to us which one
16 you're referring to there?
17 A Two doors up. Two doors west would be Wenger.
18 This location right here. This is where there's, like I
19 said, a number of vehicles. There are a number of
20 vehicles here, flat bed trailer, jeeps, trucks, a logging
21 vehicle. He usually, when he's running silo equipment,
22 he'll park his vehicle over here in front of the church in
23 the evening. (Witness indicating.)
24 The shale pit is right here at Wadels. Wadel
25 Excavating, I'm sure everybody has heard about that.
10
1 Verne Wadel, he lives on the east side of me.
2 Q Your testimony is that you own a total of 10
3 acres?
4 A Ten and a half acres. That's correct. And
5 actually as you run up to the back here, my property goes
6 up, and I don't know if you're interested in who it
7 borders?
8 Q 'I'ell us briefly?
9 A Well, my property goes up and touches Jeff
10 pyne's property. It also runs into Wadel's property and
11 also runs into Colonel Alexander's property.
12 Q Do you know what type of use they have for their
13 properties?
14 A It's all wooded area, farm basically.
15 Q Okay. Now, when you purchased your property
16 were there any structures on your 10-1/2 acres?
17 A No.
18 Q And I assume then you did not live there when
19 you first purchased it?
20 A No, I didn't. No one did. That whole area
21 there was a farm that was purchased and then divided up
22 by, I guess a developer by the name of Lucas at the time,
23 and he took it and subdi.vided it.
24 I was the fi.rst one to buy. Wadel bought
25 second. stern, a Mr. Reverend stern actually had liv~d in
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the home where Tippett lives right now. He sold the home
to Tippett. And, of course, the Wengers, they had moved
in there maybe a year after we moved in.
Q Where did you live when you first purchased this
property?
A I lived in a Camp Hill Area in Shiremanstown.
Q And at some point then you built a house on your
property here at zion Road?
A That's correct. In 1987 we built the home
there.
Q Now, at some point in time you placed some
vehicles on this property. Correct?
A That's correct.
Q ~nd can you tell us when you first started
placing them there?
A Well, basically we placed the vehicles there, I
would say, during '87, '88/ '89, '90.
Q So, it was after you built your house?
A That's correct.
Q And of those vehicles that were placed there,
were some of them unlicensed?
A There were a couple of them unlicensed. There
were a few unlicensed. If you want names, I can give you
names.
Q Do you recall?
12
1 A I had a '56 Chevy Stationwagon that's stIll
2 there. I had a '57 Chevy four door that's there. And, I
3 had a '68 GTO Pontiac that were unlicensed.
4 Q And do you recall approximately when they were
5 placed there?
6 A They were all placed there up until, I would say
7 up until 1990, in that area.
8 I have two sons and, of course/ they've gone
9 through Shippensburg High school. And, of course, YOll
10 know, they're in college. Actually the one will be
11 graduating from college in December. The other one is in
12 college. He's in his sophomore year.
13 Q Can you tell us why you moved from the
14 Shiremanstown Area to this property?
15 A Well, of course, you know you always look to
16 relocate and in my particular business it didn't really
17 matter where I lived because I travel a lot. But, the
18 biggest thing was for the number of automobiles that I had
19 at the time. It's a hobby of mine. That's all it is.
20 It's just a hobby.
21 Q How long has it been a hobby?
22 A Quite awhile. It's quite awhile. I've had a
23 '57 Chevy for a long time. My wife has had that '68
24 Convertible for a long time, you know, special plates and
25 stuff.
13
1 And then as the kids got older we got into more
2 vehicles because the two boys got interested in the
3 mechanics of it.
4 Q When you say it has been a hobby quite a long
5 time, how long specifically are we talking about?
6 A Probably from the time that I was about 15, 16
7
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12 A Well, when I was in high school I used to race
13 the vehicles. We used to race them at Williams Grove on
14 the quarter races. We'd go down to LIncoln speedway or
15 whatever. I did that for a number of years before I went
16 in the service.
17 When I got out of the service, of course, we
18 started a family life, and I still had the vehicles. And
19 I had a ' 65 Malibu Super Sport and a '69 Impala, '69
20 Malibu.
21 One of the vehicles that's up there right now is
22 a '75 Impala Custom that my wife and I purchased brand
23 new. We drove it. My son drove that car to Shippensburg
24 High School. And, he liked the car so much he wanted me
25 to keep it so that he could restore it.
14
years old and I was in high school.
Q And particularly what is your hobby?
A In reference to?
Q In reference to these vehicles, what do you do
with the vehicles, if anything?
1 When he was a senior in high school, the car,
2 the cam went out on it, for anyone that knows anything
3 about mechanics. We needed a new cam. I said, Well, let
4 it sit since he's going to college.
5 And once he gets out of school, of course, he
6 plans on taking a few of the cars and restoring them
7 himself along with my help.
8 Q So, you're testifying that you restore these
9 vehicles and your son also restores them?
10 A I purchased the vehicles a number of years ago.
11 I have cars that 1 purchased. A '68 Fastback Mustang that
12 I purchased back in the 80s from an individual that my
13 wife had worked with. He has since deceased. And, I
14 purchased the car from him.
15 My daughter drove that car. She graduated from
16 high school in 1986. And, she drove that car, that
17 Mustang Fastback to the University of Pittsburgh, the five
18 years that she was out there. And, that vehicle is still
1.9 out there.
20 The point is that I would get the cars. I would
21 fix them up. My two sons would help me work on them and
22 then the cars were actually given to my children even
23 though the cars are in my wife's name.
24 Q Now, I want to mova forward in time. As of
25 April 1991 when the Zoning Ordinance was enacted, were
15
1 there vehicles on your property which were unlicensed?
2 A Yes, there were.
3 Q Do you know or recall approximately how many?
4 A There were four that were unlicensed, as I had
5 explained earlier. One was a '59 El Camino. One was a
6 '51 Chevy Coupe. One was a '54 Cadillac.
7 MR. RUNDLE: Slow down, would you please?
8 MR. BRESKI: I'm sorry.
9 BY MR. WEBBER:
10 A '59 El Camino. That was the first year they
11 made the El Caminos. '51 Chevy Coupe; '54 Cadillac, four
12 door deluxe model; and a '71 Cadillac.
13 Q Were there any other vehicles on your property
14 at that time, if you recall, that were licensed?
15 A Basically all the vehicles that we had at that
16 particular time were licensed with the exception of, I'm
17 going to say a '57 Chevrolet four door that I had there
18 for parts for my '57.
19 Q Now, subsequent to April 1991 did you continue
20 to restore vehicles?
21 A I've always restored them. I'm still restoring
22 them to this day. And, once again, it's a hobby of mine.
23 I don't sell parts off of these vehicles. I don't have a
24 steady clientele coming in buying parts off these
25 vehicles.
16
1 I've had people from time to time see them, ask
2 me if I wanted to sell them. The answer has always been,
3 no, because it's a hobby of mine. And if I'm going to
4 sell a vehicle-- And I must admit I've never sold a
5 vehicle. My wife will attest to that fact.
6 The vehicles that I have out there are for my
7 kids; once again, for my two sons, my daughter, for my
8 personal pleasure, one or two of them, and for my wife's
9 person~l pleasure.
10 I've never sold any parts. I don't have
11 clientele. I don't have anyone coming in to buy parts. I
12 don't adver.tise to sell parts. I don't have a junkyard,
13 you know. I don't know what else to tell you.
14 Q Now, tell us about the vehicles that are
15 presently on your property. First of all, throughout
16 this proceeding or since your first contact with Mr.
17 Danner has he or anyone else indicated to you which
18 vehicles the Township desires to have removed from your
19 property?
20 A No. There was never any specific vehicles
21 named. It was just simply a situation where Mr. Danner
22 had come up this one particular day, had spoken to my son
23 MiChael, and had made reference to him to the fact that
24 I'm going to have to get-- Your dad is going to have to
25 get rid of these vehicles because we have an Ordinance
17
1 it. It went bad. We pulled it out, put a 350 in it, and
2 then tho 350 went bad.
3 When we pUlled it off the insurance roles both
4 times I had gotten letters and had to send those special
5 plates back into the Department of 'rransportation. But,
6 that's just an example.
7 When we were working on them we would take and
8 when the engines were out or if we were doing heavy
9 structural work on them, we would tarp the vehicles, as
10 some of them are tarped right now/ and we would just sit
11 them outside.
12 Once again, it got to a point where I needed
13 more working space, so I'm just putting a third car garage
14 onto my home right now for that reason. So that once we
15 get the cars to a restored point then we'll have some
16 place to park them, at least three of them, until my kids
17 relocate and are able to take them from me.
18 Q Do you have some unlicensed vehicles that are
19 stored in a garage or another type of enclosure?
20 A Well, I have in the garage right there in my
21 home I have two vehicles in there, one being the '68
22 Fastback, the other one being a '66 Mustang Convertible.
23 They're right now both unlicensed because they're inside
24 being restored.
25 Q Do you have any other structures on your
19
1 property that you store vehicles in?
2 A No, not that I store vehicles in.
3 Q And did you have any such structures as of April
4 1991?
5 A To store vehicles in? No.
6 Q Where are the other vehicles aside from the ones
7 that are in your garage?
B A Well, they're just basically sitting out by the
9 home. If yau come up my driveway you can see them there.
10 They're just sitting there.
11 Q Are they visible from the road?
12 A Some of them are visible now that the leaves are
13 off the trees. I moved some vehicles around since I had
14 some people in doing excavation work.
15 They're pretty hard to really determine what
16 cars they are, how many there are, unless you really come
17 up my driveway.
18 Q Since April 1991 has anyone from the Township
19 spoke to you concerning your storage of those vehicles on
20 the property?
21 A Never.
22 Q Up until December 1996?
23 A No. I never got a telephone call. I never got
24 a letter. I think that would be documented.
25 I don't know who the Zoning Officer was before
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Mr. Danner. As a matter of fact, 1 wasn't even aware of
that Ordinance until Mr. Danner presented it ver.bally to
my son, and then of course sent me a copy of it in the
mai l, whi ch is documented here.
Q And since April 1991 you had purchased
additional vehicles. Correct?
A I purchased two additional vehicles. One
'lias a Jeep Wagoneer that we bought / you know, for the
sole purpose vf putting a plow on and moving snow around.
Q Is that licensed?
A No.
Q Do you have some licensed vehicles on your
property?
A Oh, yes.
Q How many of those do you nave?
A You mean the ones that I'm driving today, my
wife is driving today?
Q In total?
A Yes. How many do we carryon the insurance
roles?
Q You'll have to answer.
A I'm sorry. I'm going to say that right now
we're carrying approximately seven or eight on our
insurance roles.
Q Has your restoration of these classic
21
1 automobiles increased or decreased over time or has it
2 stayed the same?
3 A Basically it has stayed the same. I really
4 haven't purchased any vehicles.
5 It's hard to find classic automobiles anymore.
6 There are none basically in the junkyards. The only
7 vehicles that you're going to find is if someone has them,
8 if the vehicles are in their garages and they sit them out
9 and now they want to sell them, they want two, three, four
10 thousand dollars for them. Of course/ I don't buy
11 vehicles like that.
12 The vehicles I have I purchased for a few
13 hundred dollars. Some of the vehicles, at least four of
14 the vehicles I got through my business, because I had done
15 work for people that couldn't pay me all the money and
16 they ended up giving me the automobiles.
17 Actually that's where three of the vehicles that
18 were up there that were unlicensed, the '51 Chevy, the '59
19 El Camino, and the '54 Cadillac came from.
20 Q How much time does it take on average to restore
21 a vehicle1
22 A It depends on how particular you want to be with
23 it. I know you can take some cars in and you can pump
24 them out in a couple months, two, three months. I know
25 other guys that will take them in and they'll spray them
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maybe in 24 hours. That's kind of ludicrous, but you
know, you've seen some of them running around.
Q Have you ever sold any of these vehicles that
YOU've restored?
A No.
Q I assume you spend money to have them restored.
Correct?
A That's correot.
Q Could you tell us on average hoW much you spend
in total?
A Thousands and thousands of dollars a year.
Q Each and every year?
A Each and every year. That's for interior work,
new tops/ major structure work.
Q And for how many years have you spent thousands
and thousands?
A For a long time.
Q Ten years?
A At least. It's not hard to understand if you go
to the Carlisle Auto Show and you want to buy a piece of
plated material for a '57 chevy or '56 Chevy, you're going
to spend hundred and hundreds of dollars on it.
Now, it might vary. You know, one year I
rnight-- I mean a new convertible top, for example, I've
had two tops put on a /68 Tempest Custom Convertible that
23
1 I have. Those tops run 450 to $500 apiece.
2 Some of the cars/ like the '66 Mustang
3 convertible, those tops only comB through with plastic
4 rear windows. You can't get glass in them because of the
5 window well. So, of course, the plastic breaks up on it
6 over a couple of years and then you're replacing that.
7 That costs hundreds of dollars.
8 You spend a good bit of money just keeping the
9 cars on the road. You spend thousands of dolla~s.
10 Q Is it your intent to restore all the unlicensed
11 vehicles that are presently on your property?
12 A I would say probably not, to be very truthful
13 with you.
14 Q Which ones do you not intend to restore and what
'15 do you intend to do with them?
16 A As far as me personally restoring them, I would
17 say not. I have a son Peter, who once again is graduating
18 from the University of pittsburgh. At least three of the
19 vehicles are hid, the '68 GTO, '68 Tempest Custom
20 Convertible, '57 Chevy.
21 Q Can you repeat that again? Slow down a little
22 bit so we can all get that.
23 A /68 GTO, '68 Tempest Custom Convertible, and a
24 '57 chevy two-tone model.
25 Q And it's your testimony that those cars will be
24
1 given to him or?
2 A Those are his cars. Even though they're in my
3 wife's name right there, they're his cars.
4 I guess you could say they're like a lot of us,
5 when we were young we had vehicles, but the vehicles were
6 maybe in our parents' names because we couldn't afford the
7 insuranoe or whatever. And then when we got old enough to
B do our thing with them we did our thing with them. I know
9 that's how it was when I was young. I don't know about
10 now.
11 Q Is it your intent to have him remove those
12 vehicles from the lot when he graduates?
13 A They will be removed. That's exactly right.
14 He's a chemical engineer and he won't be residing in this
15 area.
16 Q And tell us just briefly about your present
17 restoration efforts on your other vehicles?
18 A It's numerous. It goes from overhauling
19 complete break systems, rear axles, pulling engines,
20 putting new engines in, rebuilding ensines, things like
21 that, as far as the body work as well.
22 Basically what we do is we send the car out
23 when it has to be sprayed. We'll send it out and have it
24 sprayed in a professional shop where they have the spray
25 booth and all that. I don't do any spraying.
25
1 Q Do you have an estimate on how much money it
2 would cost to build an enclosure or enclosures to place
3 all these unlicensed vehicles?
4 A I don't know. I guess if you got a pole barn.
5 I'm not big on pole barns. I've never put any up. I
6 wouldn't know where to start with it.
7 But, I guess if you got a metal building or a
8 pole barn, you could probably get one. of those put up
9 without the concrete floor, without heat, insulation
10 and all that, from anywhere from 9/000 to probably
11 $15,000.
12 Q And would that enclose all of your vehicles at
13 that price?
14 A I would think so.
15 Q I want to ask you some questions about the issue
16 of the so-called nonconforming use, which we've been
17 talking about, of course, at these hearings.
18 When you first were approached by Mr. Danner,
19 back in December of 1996, were there any discussions
20 between you and him about whether your use of the property
21 in this manner predated the Ordinance?
2~ A I had numerous discussions with Mr. Danner.
23 When it fir~t came up I called Mr. Danner and had
24 expressed to him that I had been doing this long before.
25 That was the reason that I had asked him for the date of
26
1 the Ordinance because he did not supply it to me or to my
2 son when he first contacted my son.
3 And then, of courso, when he sent me the letter,
4 which Is on file here, I think you'll read In there, in
5 the letter, that there's no date there in reference to the
6 Ordinance of 1991. I had to call him and then ask him
7 again for the date that it was issued.
8 Q Did you tell him why you wanted a copy of that
9 day or evidence?
10 A Yes, I did. It was simply because from when we
11 had lived there and as long as I've had these vehicles on
12 the property, my response or reply to Mr. Danner was, Well
13 you know, it was sort of like a grandfather clause to me/
14 that I've been doing this thing long before the Ordinance
15 went into effect. And, you know, now you're coming up
16 here and telling me that I've got to get rid of all these
17 vehioles that are sittIng around.
18 Q And what was his response to that?
19 A He didn't have any response other than the fact
20 that, Hey, you know we have an Ordinance, and that's what
21 you're going to have to do.
22 I really didn't realize or understand why he was
23 so strong-headed on it, why he didn't want to sit down and
24 discuss with me/ or kind of filter through the number of
25 vehicles and whether or not we've had the vehicles
2'/
1 there.
2 It was just a simple case of tunnel vision where
3 he just came up on my property and said, Listen you've got
4 to get rid of these vehicles.
5 Q And did he tell you specifically which ones at
6 that point in time?
7 A No, just all of them had to go.
8 Q Has anyone else from the Township discussed with
9 you your history of restoration and use of your property
10 in this manner?
11 A No. All the contacts have been basically with
12 Mr. Danner.
13 Q Are there any parts to any of these vehicles
14 which were located on your property? Are all the parts
15 inside the vehicles?
16 A The vehicles were kind of centralized. since we
17 had gone to Court at the District Justice there in
18 Shippensburg, as I had expressed a concern over the few
19 vehicles that I had that weren't licensed that I really
20 wasn't keeping.
21 We have since gone up and we have started to
22 remove some of those vehicles, cut them up, pull the
23 engines out of them, and things like that, just to get rid
24 of them.
25 So, actually the '59 El Camino is no longer
28
1 there. The '54 Cadillac and the '51 Chevy will not be
2 there.
3 Q When will they be removed?
4 A Well, the '59 El Camino is gone.
5 Q The other two that you just mentioned?
6 A The '71 Cadillac is in the process of going. It
7 has been dismantled basically with the exception of taking
8 the engine out and the transmission, because they had the
9 500 engine that we could use if someone wanted to buy it
10 for a raGe car or whatever.
11 Q Where is it going and when?
12 A They're basically being scrapped.
13 Now, the '54 Cadillac, and the '51 chevy Coupe
14 are going to a young man by the name of John stumbaugh.
15 Q And when will that take place?
16 A Well, it should have taken place last week.
17 But, for the last two weeks I've been running back and
18 forth to Johns Hopkins Hospital with my mother that had
19 radical neck surgery.
20 Q And, so what vehicles will be left after those
21 three are removed?
22 A You have a '68. Do you want me to go through
23 the list?
24 Q Yes.
25 A You have a '68 GTO. You will have a '68 Tempest
29
1 Custom Convertible.
2 MR. RUNDLE: Pontiac?
3 MR. BRESKI: I'm sorry. pontiac, Both of them
4 are Pontiacs.
5 BY MR. WEBBER:
6 Q Take it slow.
7 A okay. You have a '65 chevy Super sport
8 Convertible. You have a '75 Impala Custom. YoU have
9 three '57 Chevrolets.
10 In addition to those three there's a fourth one
11 that was my own personal car, that would still be there,
12 and is also a '57 Chevrolet. It's sitting out in front of
13 my home. It has a tarp on it right now, because I have
14 about B or $10,0000 worth of body work in it.
15 There's a '56 Chevy Stationwagon. There's a '67
16 Impala Super Sport. There's a '68 Impala convertible, '68
17 Fastback Mustang, and a '66 convertible Mustang. There's
18 a 3201 BMW 1977. There's a '78 Jeep Wagoneer that we want
19 to use for snow removal on the property. I have a dump
20 truck that's there, a Chevrolet dump truck that I used in
21 my business.
22 Q Do you use that presently?
23 A I use that for around the property only. The
24 body went bad on it and it has a brand new 350 engine in
25 it. And, I just use it to haul things around the property
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if I have to haul wood or whatever.
And I have an '83 half ton Chevy Scottsdale
pickup truck that was used in my business. The engine
went bad on that. It has a brand new six cylinder engine
in it sitting there waiting to be put back together, put
on the road. It has already been rebuilt.
I have an '86 Jeep Cherokee that I drive.
Q Is that licensed?
A Well, some of these other vehicles are licensed
too.
Q Tell us which ones are licensed and which ones
aren't?
A I have an '81 Cadillac Sedan Deville and that's
licensed. I have the '86 Jeep Cherokee that's licensed.
I have an '84 Blazer, Tahoe Series. That's licensed.
Some of the other vehicles that I mentioned are also
licensed.
Q Which ones?
A The '68 Tempest Custom Convertible, '68 Fastback
Mustang, that are currently licensed that we Dan take and
actually drive on the road.
Now, there are a lot of other vehicles that were
licensed but they were, of course, taken off the insurance
roles.
Q Of the vehicles that are unlicensed, Mr. Breski,
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have you done restoration work on all of those or some of
them?
A From time to time when I first got them in.
Yes. The '67 ChBvy Impala Super Sport has had restoration
work on it. Three of the '57 Chevys have had restoration
work on it. The '6B Impala Convertible. I think I gave
you that one, didn't I?
THE CHAIR~lAN: Yes.
BY MR. WEBBER:
A That's had restoration work done on it. The '6B
Fastback Mustang, the '66 Mustang Convertible.
We've done restoration work on a lot of the
vehicles. You have to do things to them just to keep them
so that you can move them around from time to time.
Q Are there any that you have not yet commenced
restoration work on?
A Yes/ there are two of them. One would be the
'65 Impala Super Sport and the other one would be one of
the '57 Chevys.
Q Can you tell us when you purchased those
vehicles that have not yet had restoration work?
A They were all purchased in the late BOs, maybe
even early '90, , 91. I'm not deny ing the fact that one of
them could have been purchased in '91/ but I doubt it very
seriously.
32
1 law is made for everyone to adhere to.
2 But, I also feel that in this particular
3 situation, you know, where I've had the vehicles, and I
4 can show where my sons, and my daughter, and my wife and I
5 have driven these vehicles in the 70s, BOs, 90s; and, then
6 for someone to come up and just, you know, without any
7 reason at all say/ You're going to have to get rid of
8 these vehicles, I have a problem with that.
9 And if Mr. Danner would have sat down with me
10 and said, Well, okay, Mr. Breski, let's take a look at the
11 vehicles you have, let's take a look at your location,
12 I'm sure something could have been worked out.
13 I'm not asking for a junkyard permit. I'm not
14 asking that. I run my business out of my residency just
15 like Mr. Wadel runs his business out of his residency.
16 Just like he has a shale pit a few hundred feet away from
17 my home. That, of course, is a pretty precarious
1B situation to begin with.
19 I have a neighbor that's two doors up that has
20 six, eight, ten vehicles sitting in his yard. Once again,
21 not that I really care about how many vehicles he has.
22 Maybe he's doing his thing with them.
23 But, the whole crux of this is that we've had
24 these vehicles there. It's a hobby of mine. We're not
25 selling parts. We're not running an automotive business
34
1 out of there.
2 My son and I go over to the Carlisle
3 Fairgrounds. I do work for Chip and Bill Miller who own
4 the Carlisle Fairgrounds. We go over th~re a couple times
5 a year and we look for parts. I don't even go over there
6 to sell parts. I go over there to buy car parts for my
7 cars. I mean, it's not even a hobby where I take and sell
o stuff.
9 I don't even-- From time to time, I mean, if I
10 have an engine that needs repaired I'll take it. As I
11 explained in Court, I'll take it to Lyter's Machine Shop
12 in Carlisle. I'll take it to Bender's in Newville, at the
13 machine shop to Mike Bender.
14 These people all know me. They've rebuilt
15 engines for me over the years. You can go in here and
16 they'll tell you the cars that they rebuilt engines for me
17 for.
18 MR. WEBBER: I have no further questions at this
19 time,
20 MR. RUNDLE: Ms. Winder, before cross-examining,
21 let me clarify a couple things about some of these
22 vehicles. Okay?
23 MS. WINDER: Yes.
24 CROSS EXAMINATION
25 BY MR. RUNDLE:
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Q The '68 GTO, did you have that in April of '91 ?
A Yes.
Q Was it operational and licensed at that time?
A Yes, it had a 400 engine in it.
Q 'rhe '68 Pontiac Tempest, did you have that in
April of '91?
A I bought that from a gentleman over in
Shiremanstown.
Q Did you have it in Apr il of ' 91?
A Yes, I did.
Q Was it operational and licensed then?
A Yes, it was.
Q The '65 Chevy Super Sport Convertible, did you
have it in April?
A No, that's not operational.
Q Did you have it in April of '91?
A I would say I had it in '91. If I had it in
April-- You know, I could have gotten it in March. I
could have gotten it in June. I don't really remember.
had it in the early 90s.
Q Was it ever operational and licensed?
A No, never operational.
I
Q
A
factory.
The '75 Chevy Impala Custom?
My wife and I purchased that brand new from the
36
1 Q Do you recall when you purchased it?
2 A We purchased that one/ I would say/ in the
3 beginning of the year. I thInk that's another situation
4 where I explained to the Court.
5 Q The beginning of what year?
6 A This yftar. That one is also not outside. That
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one is in the garage, in the new garage.
Q '77 BMW, did you have it in April of '91?
A Yes.
Q And it was operational then?
A Yes, and licensed.
Q The '78 Jeep Wagoneer, did you have it in Apri 1
of '91?
A No.
Q The' 86 Jeep Cherokee / that is lioensed now.
Correct?
A Correct.
Q The '81 Cadillac is licensed?
A Correct.
Q The '84 Blazer is licensed?
A Correct.
Q The '71 Cadillac, did you have that in April of
, 91?
A It's gone. It's cut up but, no. Well, yes/ I
did have that in '91.
39
1
2
3
4
5
6
7
8
9
10 appears that you purchased or acquired two of them since
11 April of '91?
12 A Yes, I would say the '78 Jeep Wagoneer and the
13 '66 Mustang Convertible.
14 Q Okay. Did you get rid of any vehicles since
15 April of '91?
16 ~ The only vehicle I got rid of, as I had just
17 explained, was the '59 El Camino that we just got along
18 with the '71 Cadillac that we're pulling the engine and
19 tran out of and will be getting rid of it. The '54
20 Cadillac and the '51 Chevy coupe will be gone.
21 MR. RUNDLE: Ms. Winder.
22 CROSS EXAMINATION
23 BY MS. WINDER:
24 Q When will they be gone?
25 A They should have been gone last week.
40
Q The '51 Chevy Coupe, did you have it?
A Yes.
Q And the ' 54 Cad illac, did you have that?
A Yes.
Q The '59 El Camino?
A Yes.
Q So, of all the vehicles we've just discussed--
A The '83 half ton pickup.
Q Of the ones that we've just discussed, it
1 Q Who are they going to?
2 A They are going to John stumbaugh over in
3 Mowersville. Any of you ever hart work down by John
4 stumbaugh?
5 Q And those were the only four unlioensed vehicles
6 that you had on the property in 1991. That was your
7 testimony. Is that correct?
8 A With the exception of the '78 Wagoneer and the
9 '66 Mustang Convertible, as I explained to him.
10 Q You had the Wagoneer in 1991?
11 A No.
12 Q okay. My question to you was, those four
13 vehicles, the '59 El Camino, the '57 Chevy Coupe, '54
14 Cadillac and the '71 Cadillac.
15 A Right.
16 Q You've testified earlier were the only four
17 unlicensed vehicles you had on the pro~erty in 1991.
18 Is that correct?
19 A Those were the vehicles that I picked up because
20 people had given them to me. That's exactly what I
21 said.
22 Q Are they the only unlicensed vehicles you had on
23 the property in 1991?
24 A I think I just explained to him exactly what,
25 I mean the list of vehicles that I had just given him.
41
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Q ArB those the only ones which were unlicensed on
the property in 1991?
A I would say with the exception of the '67 Impala
Super Sport that I had explained that was operational but
un 1 icensed.
THE CHAIRMAN: Is that a yes or no?
MR. BRESKI: As I had explained to him, the '67
Chevy Impala Super Sport was operational, but unlicensed.
BY MS. WINDER:
Q Was it sitting out on the property in '91?
A Yes.
Q And it's not operationa 1 and it's on the
property now. Is that right?
A It's operational, if you wanted to get in it.
It doesn't have any seats or anything in it, but the
engine runs. It's operational.
Q Okay. But, you couldn't operate it on the
road safely without having any seats in it, could
you?
A No, because I don't have any fenders on it
either, because if you take a look at it you can see how
the fire walls and everybody have been rebuilt.
Q Now, you said that these other vehicles all
belong to your wife. Did you have titles for those
vehicles?
42
A I would say so.
Q Do you have titles for them now?
A I would say so.
Q You 'tlould say so. Do you or don't you?
A Yes, I do.
Q Do you have them here?
A No, I don't have them here.
Q You testified at Mr. Daihl's Office that you had
sent in some titles on junked vehicles. Is that right?
1
2
3
4
5
6
7
8
9
10 A No, I never said I sent any titles in. Oh, on
11 junked vehicles, yes, those were the four vehicles that we
12 were just talking about, the '51, the '59, etc.
13 Q So, you sent in the titles on the four that
14 you'd brought to the property in 1991 unlicensed?
15 A Right.
16 Q And the other vehicles that you had operating in
17 1991 in use, you have since parked on the property if they
18 are unlicensed and inoperable. Is that correct?
19 A To answer your question, depending on how you
20 want to look at it, yes. Some of the vehicles we drove
21 and when we had problems with them we stopped and we
22 parked them. We pulled the engines out, the
23 transmissions, whatever. That's correct.
24 Q And where are those engines now?
25 A Some of them could be in with Mike Bender. Some
43
1 of them are out at my garage.
2 Q How many are at Bender's?
3 A At least two. And there's two in at Lyter's.
4 Q Was that true in December of 1996 when you first
5 talked to Mr. Danner about the cars?
6
7
8
9
10
11 reference to my cars. All Mr. Danner did was come up on
12 my property and express to my son that I had to get rid of
13 the vehicles. When I called Mr. Danner--
14 Q Did you come to the Township?
15 A I expressed all this to Mr. Danner.
16 Q Did you come to the next Township meeting after
17 December 6th?
18 A No, because nothing was given to me. I mean, as
19 this thing went on I had numerous telephone calls with Mr.
20 Danner.
21 Q You've identified a letter that was sent to you
22 by Mr. Danner dated December 6th, 1996?
23 A That's right.
24 Q And you agree you got that letter that's marked
25 . Tl?
A Yes.
Q Why didn't you tell him that?
A I beg your pardon?
Q Why didn't you tel! him that?
A Mr. Danner didn't want to hear anything in
44
.--'--
1 A It says, I thank you for your time by--
2 Q You don't have to read it.
3 A I want to read it. His sole purpose for coming
4 to my property was for a buildintJ permit and then, of
5 course, when he saw the cars he decided to tell me I had
6 to get rid of the cars.
7 Q Did you ever come--
8 A Mr. Danner didn't want to hear and he didn't
9 want to sit down and discusS. If he had wanted to do that
10 we wouldn't be going through all this right now.
11 Q Did you come to a Township meeting in January?
12 A No, because I didn't really think I had to.
13 MR. RUNDLE: Mr. Breski. Hold on a second.
14 MR. BRESKI: I'm sorry.
15 MR. RUNDLE: Mr. Breski, YOU've got to let her
16 finish asking her question before you respond.
17 MR. BRESKI: That's my fault. Alright. Go
18 ahead. I'm sorry.
19 MR. RUNDLE: We have a stenographer.
20 BY MS. IVINDER:
21 Q You didn't come to any Township meeting and
22 request that these cars be reviewed?
23 A No, I didn't.
24 Q Did you call any of the Supervisors?
25 A No, because all of my conversations were with
45
1 Mr. Danner.
2 Q Did you know who any of the Supervisors were?
3 A Yes.
4 Q And you didn't make any attempt to get in touch
5 with them or to request that these cars be viewed as being
6 something that were being worked on and therefore were not
7 unlicensed, inoperable or junked vehicles?
8 A No, because I figured we had been doing it long
9 after Mr. Danner had sent me the information in reference
10 to the Ordinance when it was issued. I figured that since
11 we had been doing it prior to that, that wasn't an issue,
12 but Mr. Danner didn't want to hear that.
13 Q And after you were notified that this was a
14 violation of the Ordinance in June of this year, you still
15 didn't come to the Supervisors, did you?
16 A No.
17 Q Didn't make any attempt to contact any of the
18 individual supervisors?
19 A No, because everything was done through Mr.
20 Danner.
21 Q Now, you said that you restored vehicles and you
22 spent a lot of money to keep vehicles on the road?
23 A That's correct.
24 Q So, are you telling us that the majority of
25 money that you spent has gone into vehicle8 that are now
46
1 licensed and running on the road? You told us that you've
2 done several repairs on your '66 Mustang.
3 A Yes, I would say so.
4 (Whereupon, Township's Exhibit Nos. 2/3,4 and 5
5 were marked for identification.)
6 BY MS. WINDER:
7 Q Mr. Breski, I'll show you what I've had marked
8 for identification as Exhibits T2/3,4 and 5, and ask you
9 if you recognize those photogr.aphs?
10 A That's right. I recognize them.
11 Q And do they represent your property?
12 A That's correct.
13 Q Would you say that they fairly and accurately
14 show the vehicles on your property?
15 A I would say so, yes.
16 Q And that's true for all of these exhibits?
17 A I guess so.
18 Q T2,3/4 and 5?
19 A Whatever your point is, yes. They're my
20 vehicles. They're on my property.
21 Q I'll show you specifically what's been marked as
22 Township's Exhibit No. 2 and ask you if the top picture of
23 that group shows vehicles that you've described to us
24 tonight?
25 A That's correct.
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Q Are those vehicles operating that are shown in
that picture?
A NO.
Q Are any of those vehicles restored vehicles?
A Some of them were. Some of them were in the
process of being restored. Yes.
Q Which ones were in the process of being
restored?
A The '75 Impala that's sitting there, the '57
Chevy and '56.
Q What work was done?
A We had interior done on them. We had
transmission work.
Q When was that done?
A Over the last few years.
Q How recently has any work been done on that
vehicle?
A Recently nothing.
Q And on any of the other vehicles has there been
any work done recently?
A Well, if you look up here the dump truck runs.
It's operational. There's an '83 half ton pickup truck
that has a brand new engine and the fenders rebuilt. It's
sitting there and needs to be put on the road.
Q Is that the Scottsdale that you were talking
5
48
1 about?
2 A That's right. There's a '65 Impala Super sport
3 sitting next to it. As I attested, there wasn't any work
4 done to that. That was the one vehicle that was never
5 operational.
6 Q And you would agree that these vehicles were
7 sitting up on your property in December of '96?
8 A That's correct, yes, because I'm putting an
9 addition onto my house and that's where they've been lined
10 up.
11 Q I'll show you the pictures on the back of
12 Exhibit T2. Is that the addition you're putting on your
13 property?
14 A That's correct.
15 Q And that's, what, a two car garage?
16 A That's a three car garage.
17 Q Three car garage. And there are already two
18 cars in that garage, you've testified here tonight?
19 A That's correct, that I'm working on.
20 Q And so, at best, you could put one more car in
21 that garage?
22 A I think it's self-explanatory.
23 Q Okay. So, you would agree with me?
24 A I would think so, yes.
25 Q That you couldn't store anymore of these other
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vahicles in there?
A No. The whole purposa for the addition for the
new garage Was to have an area to work on a second car.
The third garage is for my wife to park her vehicle.
Q And what is she currently driving?
A An '84 Bla2er.
Q And that's one of the ones you testif.ied is
licensed and on the insurance?
A That's right.
Q And I'll show you what has been marked as
Township's Exhibit No.3.
A Two? I'm sorry, Number 3.
Q Township's Exhibit No.3, it's labeled with a 2
as a second group of pictures. On the top picture does
that also show other vehicles on your property?
A Yes.
Q And in the foreground of that picture there are
some vehicles which are sitting--
A With tarps on.
Q In front of the garage?
A That's right. They were. They're not. Yes,
they are.
Q TheY're not there now?
A They're in the same area, yes. They/re in the
same area.
50
1 Q Have you moved them since?
2 A They had to be movej because of construction
3 work, yes, excavation.
4 Q And when were those vehicles tarped and put
5 there?
6 A I'd say that they've been worked on in the last,
7 anywhere from six months to a year and a half.
8 Q And presently they're sitting further off to the
9 side?
10 A I would say if you go past now you could look up
11 at the first driveway and see two of the vehicles.
12 Q And which vehicles are they of the list that you
13 gave us?
14 A Okay, on the left hand side, right here, you
15 have a '68 Impala Convertible. The middle one is a '67
16 Chevy Impala Super Sport, and the first one right here
17 with the blue tarp on is a '57 Chevrolet.
18 Q And with respect to the other photographs which
19 are marked Township's Exhibit No. 4 and Township's Exhibit
20 No.5, do they show other vehicles that are parked on your
21 property?
22 A Well, this vehicle right here is a '75 Impala
23 Custom.
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Q
A
And it's unlicensed?
It is now. That was the one that my wife and I
51
1 bought new and my son drove to high school, and the whole
2 deal, but it's unlicensed, to be restored later on.
3 Q Now, you told us that your son intended or you
4 intended, I guess, that your son would take several of
5 these vehicles?
6 A Intended. It's a definite fact.
7 Q It's a definite fact, but he lives in
8 Pittsburgh. Is that correct?
9 A He's going to school in Pittsburgh. Yes.
10 Q So, he hasn't moved those vehicles?
11 A No, because he works on them when he comes out
12 to the house. He's currently going to college and there's
13 no place to put them because he's renting an apartment and
14 he'll be graduating in December.
15 Q But, he has no definite permanent residence in
16 Pittsburgh to move them to?
17 A Not if he's going to college. No.
18 Q So, although it's a definite fact, he has made
19 no arrangement to actually take them off the property at
20 any particular date as of this point?
21 A No. I'm not sure where he'd want to put them
22 since when he graduates, I mean he'll be working for Arco
23 Chemical or Nova because he's a Chemical engineer. And,
24 at that particular point of time, if he gets a home or
?5 whatever and gets his garage set up, then he'll take the
52
1 cars.
2 Q That's if he does those things?
3 A I'm sure it's a definite fact. I mean he's not
4 an individual who-- He's not the average kid, I guess you
5 could say that loses interest in a hobby. It's definitely
6 a hobby of his.
7 Q Now, of these vehicles that you've described to
8 us and are shown in these photographs, are there any that
9 you have completely restored?
10 A Sure.
11 Q Which ones?
12 A Well, the '68 Mustang Convertible is not there.
13 This one, the '68 Tempest Custom Convertible that you see
14 sitting there. Okay? The '68 Fastback Mustang is in the
15 garage being restored again.
16 Q But, it's not completed, is it?
17 A No, it's not completed.
18 Q Okay. So my question to you is--
19 A There's only basically two of them there that
20 are completed.
21 Q There are two that have been restored?
22 A Yes. It takes time to do them.
23 Q And the other ones are sitting out?
24 A Well, they're sitting out temporarily. Yes.
25 Q Temporarily for the last seven years?
53
1 A Well, I wouldn't say that. Some of them are.
2 Q I show you what has been marked as Township's
3 Exhibit No.4.
4 A Okay.
5 Q The top photograph. You identified the oar, the
6 black and white car to us?
7 A Right.
8 Q Next to the car is a frame?
9 A That's right.
10 Q And, what's that for?
11 A That's a 210 style '57 Chevrolet. It's a two
12 door. It's sitting on blocks. This frame is for a '57
13 Chevrolet.
14 Q And that was put on the property then after
15 1991?
16 A No, that was put on the property before 1991.
17 Q But, it's not one of the vehicles you've told us
18 was there?
19 A And we pulled, and you can see, if you know
20 anything about the rearend, we pulled the pump and stuff
21 out there that we're having done over. This particular
22 frame will be sandblasted then.
23 Q So, that was sitting there?
24 A No. That was actually inside. It was actually
25 inside. I had that inside when we took these. As you can
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see the shell sitting right there. We took the shell off
of it.
So, for the last couple years, yes, it has been
sitting there, but not since 1991. I mean, it hasn't been
sitting there since 1991. It was in the garage at one
point.
Q It was sitting out. For the last couple years?
A For a couple years. Yes.
THE CHAIRMAN: Do you have any other questions,
Ms. Winder?
MS. WINDER: I'm just seeing if I have any
others.
BY MS. WINDER:
Q 11he 1978 Jeep Wagoneer, you said you wanted to
use but you're not using it at present. Is that right?
A No, I'm not using it at present.
Q And it's not operational?
A We thought we had it running. It was
operational. We brought it over and once again the thing
is baCkfiring up to the carburetor, has a flat spot, and
it has a lobe problem on the cam. So now we have to put a
new cam on that.
Q And that you agreed you bought after '91?
A That's correct. Yes.
Q And it's shown in those pictures, is it not?
55
1 A That's correct. Yes, it Is. And, once lJgain,
2 the whole purpose for buying that was to put a plow on it
3 and remove the snow.
4 Q Now, you saId that if you had had the
5 opportunity to discuss this with the supervisors you would
6 have agreed that some of those vehicles need to be
I removed?
8 A That's correct. Yes.
9 Q And you have made efforts to remove some of them
10 at this point?
11 A Yes, I have.
12 LIke I said, the one set of photographs that you
13 had there, if you can Gee the '59 El Camino on there and
14 the '51 Chevy. They're on one of them. I don't know
15 which exhibit it lS. And the '71 Cadillac and the ' 54
16 Cadillac. Those four cars will be gone. Two of them are
17 basically gone now. And the other two cars will be gone.
18 They should have been gone last week.
19 Those were the vehicles that we had that
20 weren't licensed and operational. Those, once again,
21 were vehicles that I got through my job, through my
22 business.
23 Q Do you have any plans to get rid of any of the
24 other inoperable vehicles?
25 A I would say, yes. Yes, I do.
56
1 Q Which ones?
2 A Probably the '65 Impala Super Sport. Like I
3 had testified to the vehicle was smashed in the front
4 years ago and, of course, that's why it wasn't
5 operational.
6 We were going to restore it, but as time goes on
7 I just see that there's-- You know, I'm not sure if I'm
8 going to have the time to really get involved in that,
9 because I'd have to send it out to have some really major
10 work done to it.
11 Q Are there any others you plan to get rid of?
12 A As far as getting rid of, there will be cars
13 that will be going to, once again, my son as he sets up
14 residency.
15 The '67 Chevy Impala, the '66 Mustang
16 Convertible, and one of the '57 Chevys belong to my other
17 son Michael.
18 Q And he still resides at your property?
19 A That's correct.
20 Q And those are not titled to him, are they?
21 A No.
22 Q And, on an average, how many hours a week do you
23 spend restoring vehicles?
24 A Quite many. It's one of the reasons I kind of
25 jump back and forth. It's one of the reasons I don't
57
1 have my addition done yet. It's one of the reasons I
2 don't have the cars done yet. I guess it's a situation
3 where you have too many irons in the fire, but it's a
4 hobby.
5 MG. WINDER: I have no other questions.
6 MR. WEBBER: I have some questions to follow-up
7 on the questio~s she asked Mr. Breski.
8 THE CHAIRMAN: Alright.
9 REDIRECT EXAMINATION
10 BY MR. WEBBER:
11 Q You were asked about why you didn't go to the
12 Township Supervisors or the Township meetings. Do you
13 recall those questions?
14 A That's correct.
15 Q Did Mr. Danner indicate to you in what capacity
16 he Was acting?
17 A He said he was the Zoning Officer and as
18 a result of that he enforces the Zoning Ordinances
19 and, you know, I was to get rid of the cars/ the
20 vehicles.
21 Q And did he tell you to go to the Township
22 Supervisors, if you weren't happy?
23 A No, he didn't.
24 MR. DANNER: I personally didn't verbally?
25 BY MR. WEBBER:
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A No. Now, I'm in reference to the telephone
conversations that I had with Mr. Danner. Even the day
that Mr. Danner delivered the letter to my home, I wasn't
there and he delivered it to my wife. That was when he
brought over my building permit.
As a matter of fact, the only time that, I
guess, when Mr. Danner and Mr. Bender and Mr. Hoover there
came out to my property was when my son Michael and I were
there moving cars around.
And I might admit, they come out the one day to
take all these photographs when my son and I were working
on cars/ moving them around.
Q Was that the day before the District Justice
hearing?
A That's correct. The very day before it.
Yes.
MR. WEBBER: No further questions.
MR. BRESKI: Can I say something?
MR. RUNDLE: No, sir, you can't.
MR. BRESKI: Okay. I'm sorry.
MR. RUNDLE: Ms. Winder, any Recross?
MS, WINDER: No.
MR. RUNDLE: Any Members of the Board have a
question of the witness?
MR. HEBERLIG: Yes.
59
1 RECROSS EX~MINATION
2 BY MR. HEBERLIG:
3 Q I wondered, all these old engines that are blown
4 and the transmissions and rearends and so on, where are
5 they at? Are they removed?
6 A They're in the garage.
7 Q They/re inside?
8 A Inside except for two that we just moved out of
9 the garage when we were doing the addition, and I have
10 those sitting out in front of the blue tarp and they/re
11 covered. But, I have other ones.
12 The engines that came out of the '57 Chevy, the
13 '56 Chevy, as some of you know are 283 engines. Those are
14 inside. The 327s, the 350s, things like that.
15 I took a 350 engine out of a '68 Tempest Custom
16 Convertible, the red car there, and I dropped a 455 in it.
17 This one right here. (Witness indicating.) Anyway, I
18 pulled that. That 350 is sitting outside, and there's
19 also another Chevy 350 sitting next to it, but that's not
20 currently--
21 Q The majority of the engines and so on are
22 inside?
23 A That's right. A couple of them are at Mike
24 Bender's. A couple of them are at Lyter'S Machine Shop in
25 Carlisle. I have some other ones out.
60
MR. HEBERLIG: That's ~ll.
MR. RUNDLE: Mr. Rutherford?
~E CHAIRMAN: No questions.
MR. RUNDLE: Just a oouple questions, Mr.
Breski.
Q
now?
A
Q
A
Q
A
Q
A
Q
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we're going to use them for everyday use. I'm not into
buying Corvettes or cars that are 7/000; 8,000;
$10,000.
2
As time goes on these cars, you know, will be
out of there. I don't want them messing up, making my
property look shoddy as it is. But, it was a hobby that I
got into and just, no question about it, it just got to be
a lot of cars.
Q With respect to the vehicles, did the property
look any different than this in April of '91?
A Did it look any different?
Q
A
didn't--
really--
Q The home was there in April of '91?
A We had more trees up there and everything. Yes.
Q With respect to the vehicles, did the property
look any different in April of '91?
A Yes, it did. Yes, it did, because you basically
couldn't see those vehicles in '91, because I had them up
around the corner there where the wood pile is. And, of
course we had more trees in there. The road wasn't cut up
Yes.
Oh, yes, it looked a lot different because I
Of course, we had the home built. You couldn't
to that point.
Over the years I've taken and cut a road in
62
1 there and I've revised my driveway three or four different
2 times, the whole thing. I mean, we're constantly doing
3 things out there.
4 Q Would you say it looks more like a junkyard
5 now or it looked more like a junkyard in April of '91?
6 A I guess it all depends on who's looking at it.
7 If you're looking at it and saying it looks like a
B junkyard, then what I'm going to say is as a hobby those
9 are classic automobiles and I don't think it looks like a
10 junkyard.
11 I think that people who have nice picket fences
12 and green grass in their yard, you know, I feel that that
13 should be removed and blacktop or macadam and concrete
14 should be put there. So, it is all in the eyes of the
15 beholder.
16 I don't know what you want me to say. Do you
17 want me to say it is a junkyard? It is not a junkyard.
18 Q If I was standing on the Zion Road looking at
19 your property in April of '91.
20 A You couldn't see those vehicles.
21 Q You could not see the vehicles?
22 A No.
23 Q Today if you're standing on Zion Road looking at
24 the property, can you see the vehicles?
25 A You're going to see/ if I may clarify this?
63
1 Simply because of the construction work that's going on,
2 if you stand on Zion Road and look up in front of my home
3 you will see one maybe two vehicles in the front of my
4 home.
5 If you go down approximately 200 feet and you
6 look up, because the leaves are off the trees right now/
7 you will probably see three maybe four of those vehicles
8 that are in a row there.
9 ~ut/ I might attest to the fact that Mr. Danner
10 and Mr. Bender and Mr. Hoover had to actually come up onto
11 my property to take those photographs. Had they taken
12 those photographs from Zion Road they would have never
13 gotten those pictures.
14 MR. RUNDLE: Thank you, sir. That's all I
15 have.
16 THE CHAIRMAN: You're excused.
17 MR. BRESKI: 'I'hank. you.
18 THE CHAIRMAN: Who else?
19 MR. WEBBER: No further witnesses at this time.
20 We move for the admission of Applicant's Exhibit
21 No.5.
22 THE CHAIRMAN: Which was the sketch?
23 MR. RUNDLE: Sketch.
24 MS. WINDER: We don't have any problem with
25 that.
64
1 (Whereupon, Applicant's Exhibit No. 5 was
2 admitted into evidence.)
3 THE CHAIRMAN: Ms. Winder, are you going to
4 present testimony?
5 MS. WINDER: Yes. We would call Mr. Danner.
6
7 Whereupon,
B JEFFREY A. DANNER
9 having been previously sworn or affirmed, according to
10 law, testified as follows:
11 DIRECT EXAMINATION
12 BY MS. WINDER:
13 Q Mr. Danner, for the record, you testified
14 previously. You're the Zoning Officer for Hopewell
15 Township. Is that correct?
16 A Yes, ma'am.
17 Q And you were during December of '96 and all of
18 '97, the times that we're talking about here?
19 A Yes.
20 Q And I'll show you what has been marked for
21 identification as Township'S Exhibits 2,3,4 and 5, and ask
22 you, first of all, if those are photographs?
23 A Yes.
24 Q And were they taken by you?
25 A Yes.
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Q And are they labeled on each exhibit as to when
they were taken?
A Yes.
Q The dates?
A Yes.
Q And do they fairly and accurately represent the
condition of the property as you observed it on those
dates?
A Yes.
Q Now, looking at those photographs do they also
indicate the last time that you were on the property?
A Yes.
Q And that was when?
A September 8th, 1997.
Q So, you don't know independently of Mr. Breski's
testimony here tonight whether or not vehicles have been
removed?
A No.
Q Now, when you first had conversations with Mr.
Breski, did you ever suggest to him that he discuss this
matter of hobby vehicles being restored with the
Supervisors?
A Each time I've talked with him I suggested he
come to the Township meeting or contact one of the
Supervisors.
66
1 Q Now, when you first talked to him in early
2 December 1996/ did he say to you that he was restoring
3 vehicles and that this was a hobby for him?
4 A' 96, no.
5 Q No. Did he tell you that any of those vehicles
6 were running in '96?
7 A I don't think that exact statement came up,
B no.
9 Q When is the next time that you were at the
10 property and took pictures?
11 A After what date?
12 Q After December 1996?
13 A June 21st.
14 Q In June did you have any contact/ on that day
15 when you took those pictures, did you have any contact
16 with Mr. or Mrs. Breski?
17 A That was the day I was there to check, not
18 give him a zoning permit, but to check that everything
19 met the requirements because he asked me to come by to
20 make sure he filled out the zoning application
21 requirements.
22 Q Was that after he had been cited for failure to
23 have the zoning and a building permit?
24 A He finally got the zoning. Yes.
25 Q And that was for the addition that he put on the
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house?
.A
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permit.
A
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Q
A
Yes.
So, you were there in.connection with that
Is that right?
Yes.
And did you talk to Mr. Breski then?
No. Mrs. Breski was there.
Mrs. Breski was there?
Yes.
Q Was anything said to you by Mrs. Breski about
the cars and the fact that the Breskis felt that this
should be a use of the residence that the Supervisors
should accept?
A Not by Mrs. Breski.
Q On any of the occasions that you were at the
property of the Breskis, did you see Mr. Breski or anyone
working on any vehicles?
A The day we were there, September 8th, I saw Mr.
Breski and his son movIng vehicles around. That's about
as far as it looked like, just relocating them.
Q And how were they moving them?
A Pushing.
Q So, they weren't starting up any of these
cars and driving them anywhere that you saw? Is that
right?
6B
1 A No. That's correct. Your statement is correct.
2 Q What wer.e they using to push these vehicles?
3 A Their hands.
4 Q They weren't using the dump truck?
5 A No.
6 Q When you were there in September, could you tell
7 whether or not there were any vehicles in the garage?
8 A No. Well, I didn't look in the garage. I can't
9 really say that.
10 Q Alright. Did you see any enCJines sitting
11 outside covered with tarps?
12 A I saw many parts outside. There could have been
13 some with tarps on them. I didn't look under tarps.
14 The first time, June 21st, there was tarps on a
15 lot of things. That day he was movinCJ stuff around, so I
16 can't really say. Mostly it was just parts out in the
17 open. I'm not talking about the garage now. I wasn't in
18 that.
19 Q Okay. When you say there were things tarped,
20 where were those?
21 A Back in June, inoperative, junked vehicles
22 sitting, just tarps on top of them, tires on top of tarps,
23 in Exhibit No.3 here.
24
25
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A
Are those sitting away from the garage area?
They're sittIng in his parking area.
69
1 Q SO, they're sitting near the house?
2 A Yes.
3 Q Did you ask Mr. Breski, at any time that you
4 were talking with him about the status of vehicles that
5 were sitting near the house, whether or not they would be
6 back on the road soon?
7 A Could be. I can't really remember that
8 statement.
9 Q Okay. Do you remember that Mr. Breski made
10 any statements like that to you about any of the vehicles?
11 A Well, yes. I remember we did have conversations
12 and later on Mr. Breski expressed that he felt they should
13 be allowed to be there.
14 There was on a phone conversation where he got
15 into it about the grandfathering and all that stuff. I
16 said, Well, I don't really know too much about that. It's
17 my Zoning Ordinance that I'm going by.
18 Q So, he didn't say to you that he was putting
19 those back on the road shortly?
20 A No.
21 Q Did you ask him how long those vehicles have
22 been sitting on the property up around the house or away
23 from the house when you talked to him on the telephone?
24 A Well, Mr. Breski did ask me about the times and
25 I told him when the Ordinance went into effect every time I
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talked to him.
Q Did he say that all those vehicles had been on
his property in 1991?
A No.
Q Did he say anything about whether some of them
were cars that he had that his children were driving at
the time and they were parked on the property after
that?
A No.
Q So, there was no discussion about that?
A This is all heard later at the District Justice
and here.
Q And you're saying that you did suggest to Mr.
Breski that if he felt that what he was doing should be
permitted that he should talk to the Supervisors?
A Every time I talked to him.
Q That the Ordinance clearly had a prohibition
against all unlicensed, inoperable or junked vehicles
being on the property?
A
Yes. I provided that to him a couple times.
I
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Q
When Mr. Breski filled out his application for a
zoning permit did he list his use of the property?
A Yes.
Q And what did he say?
A Well, the application has the name and address.
71
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It goes down to Zoning District AI. He probably had help
filling that in with Alverda. And intended use of
building site, residential.
Q Was there any mention of storage of vehicles in
that paperwork?
A Neither in the zoning permit or the building
application, just construction of single car garage and
spare room.
Q And that was the building permit for the
addition that he had already started to construct and had
not obtained a building permit for. Is that right?
A Yes.
Q There was no discussion at that point about
storage of vehicles?
A No. I can say he filled it out. He put a date
on it, May 30th, but we didn't receive it in the
Secretary's Office until June 20th. I issued a permit
June 21st.
MS. WINDER: I have no other questions.
MR. RUNDLE: Ms. Winder, are you going to have
that document marked as an exhibit or don't you intend to
,
,
,
do that?
MR. WINDER: I don't have copies of it. We can
make copies of it.
MR. RUNDLE: Cross-examination?
72
1 CROSS EXAMINATION
2 BY MR. WEBBER:
3 Q Mr. Danner, you did testify that Mr. Breski
4 discussed with you the so-called grandfather clause. Is
5 that correct?
6 A Yes.
7 Q Okay. And you told him that that was not in the
8 zoning Ordinance. Didn't you tell him that?
9 A Yes, and I cannot address something I don't
10 understand as far as what he was talking about, some
11 legislation or something. I'm supposed to enforce the
12 Zoning Ordinance.
13 Q Did you go back to the Supervisors and say to
14 the Supervisors, Hey, Mr. Breski claims that there's a
15 grandfather clause that all~ws him to continue his use of
16 the property in this manner?
17 A I'm sure/ I believe, I did say to them. Each
18 time I reported I'd talked to him and talked to him about
19 the building permit, junked vehicles. I even invited him
20 to come back and talk to them about the culvert that he
21 was at one time talking with the Supervisors about.
22 Q My question is, did you go back to the
23 Supervisors and tell them that Mr. Breski was claiming
24 that there was a grandfather clause?
25 A Yes. At a meeting.
73
1 Q And as a result of that meeting did you go back
2 to Mr. Breski and tell him whether or not the Township was
3 taking the position that the grandfather clause applied?
4 A No.
5 Q And isn/t it true that Mr. Breski, from the very
6 onset of your communications with him, was talking ahout
7 this grandfather clause?
8 A No.
9 Q When did he first discuss that with you?
10 A That was on the phone, which his wife listened
11 in on, and his son, I guess.
12 Q When was that?
13 A Let's see here. The afternoon of the 21st.
14 That's the morning I met Mrs. Breski at a reasonable time
15 on a Saturday morning.
16 Q June 21st?
17 A Yes.
18 Q Is that your testimony that that is the first
19 time that Mr. Breski discussed with you the so-called
20 grandfather clause?
21 A That's where the words were coming up at.
22 Q Okay, but wasn't there some discussions prior to
23 that to the effect that Mr. Breski had used his property
24 in this manner prior to 1991?
25 A No. I don't have it in my notes. No.
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Q But, he did in fact discuss with you that he had
used the property in this mannor before the ordinance was
enacted, didn't he?
A I talked to Mr. Breski a good bit. The way he
claimed here he never discussed anything with me.
Q I'm asking you. Didn't he, in fact, tell you
that he used his property in this manner prior to 1991?
A It's somewhere along the way of when he talked
about the grandfather clause. Yes.
Q Okay. And that was prior to June 21st of 1997?
A Yes.
MR. RUNDLE: Did you say, no, sir?
MR. DANNER: No.
BY MR. WEBBER:
Q Isn't it true that he asked you for a copy?
A I gave him. Yes.
Q Of the date of the Ordinance?
A He asked me for the date of the Ordinance. I
gave him the date of the Ordinance. I said, If you're
willing to go to the Secretary's Office you can purchase
one or view it at the Office of the Secretary, Alverda
Ocker.
Q so, you never supplied him with the date that
the Ordinance was enacted?
A Yes, I did.
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Q When was that?
A I didn't give it to him in writing. I suggested
he go look at it personally or get a certified copy from
the Tcwnship.
Q Are you saying that you did or didn't supply him
with a copy?
A I gave him the date.
Q When did you give him that date?
A Well, a couple times.
Q And was it prior to June 21st?
A Yes. Our first conversation.
Q Okay. And, from the very beginning he was
telling you that he used the property in this manner prior
to 1991?
A No. He didn't know there was an Ordinance in
effect and he wanted to know what the date of the Zoning
Ordinance was.
Q Okay. And the reason he wanted to know the date
of the Ordinance was for that very reason, wasn't it?
MS. WINDER: I object.
MR. DANNER: I can't say what he's going to say.
MS. WINDER: I think that is speculation.
MR. WEBBER: I'll rephrase the question.
MR. RUNDLE: Rephrase the question.
BY MR. WEBBER:
76
1 Q Isn't it true that during that same time period
2 in which he requested the date of the Ordinance, he told
3 you that he used the property in this manner for a number
4 of years?
5 A That's a good possibility, that wording. That's
6 better wording. I like that better.
7 Q And he wanted to know the date of the Ordinance
8 or the date that it was enacted?
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16 A I'd say no to that question. He stated. I
17 didn't say. You're saying we discussed.
18 Q Okay. He told you in that discussion that he
19 had used the property Hke this, for a period of years and
20 that's why he wanted the date of the Ordinance. Isn't
21 that true?
22 A He did not say why he wanted the date of the
23 Ordinance. He wanted it and didn't know such Ordinanoe
24 was in effect and wanted to know when it went into
25 effect.
A Yes.
Q Because--
A No, backup. Go ahead and finish your question.
Q Okay.
A Go ahead and finish your question.
Q You and him were discussing the fact that he had
used the property in this manner for sometime?
77
1 was applicable, did you?
2 A There was no definition in my book on a
3 grandfather clause. No.
4 Q So, you were looking for the word grandfather?
5 A Yes.
6 Q And it wasn't there. And, Mr. Breski was
7 frustrated because he was trying to tell you that there
8 was a grandfather clause that protected him?
9 A What's the grandfather clause?
10 Q I'm just asking you. He was frustrated
11 because-.'
12 A Yes.
13 Q He was talking to you about the grandfather
14 clause and you did not--
15 A I don't know what grandfather clause he's
16 talking about.
17 Q And as a result he was frustrated and felt he
18 wasn't--you weren't understanding?
19 MS. WINDER: I object. I don't think there's
20 any way that this witness can tell what Mr. Breski's
21 feeling was, and he's asking the witness to speculate.
22 THE CHAIRMAN: Excuse me. Can you get to your
23 point more clearly?
24 MR. DANNER: I can tell you. I can help you a
25 little bit.
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THE CHAIRMAN: Excuse me. Can you get to your
point more clearly?
MR. WEBBER: I'm going to move to another
subject. I think we've made our point there.
THE CHAIRMAN: Alright. Thank you.
BY MR. WEBBER:
Q When were the photOD taken that are labeled as
Exhibits 2 through 57
A Exhibit 2 was taken December 4th, 1996; Exhibit
3 taken June 21st, 1997; Exhibit 4, September 8th, 1997;
Exhibit 5, September 8th, 1997. And that's the T
exhibits.
Q So, some of those exhibits were taken after you
sent the Enforcement Notice to Mr. Breski?
A Yes.
Q And it's your testimony that each time you
talked to Mr. Breski you suggested that he contact the
supervisors?
A I sure do with everybody. Yes.
Q Each time?
A The day we were there with the Supervisors I did
not say that to him. ~hat's the day I said we were here
to do an inspection, introduced myself, and welcomed him
to come along. But, he was there to see where we went the
whole time. I did not say that to him that day.
80
1 Q But, other than that, the testimony is that
2 every time you talked to him you told him to contact the
3 Supervisors?
4 A I believe saying every time, could be missed
5 somewhere. out, every time it was an important issue I
6 issued letters or talked with him about it first initially
7 and followed up each time with, Please come to the
8 Supervisors.
9 He complained he didn't want to come to the
10 Supervisors. They were too busy with buying a loader,
11 didn't want to talk to them.
12 He actually was here to talk about another
13 issue, but he didn't want to come back to the Supervisors.
14 Q What happened between December '96 and June
15 1997, did you have any communications about the vehicles
16 with Mr. Breski?
17 A Well, December I sent him the letter. We talked
18 on the phone. July. You said June.
19 Q Right, between December '96 and June of '97?
20 A During that time we were proceeding in trying to
21 get a zoning permit for the addition.
22 Q Now, you testified that on September 8th of 1997
23 the Breskis were moving some vehicles. Did you ask them
.24 why they were moving the vehicles?
25 A No. I didn't say September 8th.
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Q When?
A Yes, September 8th.
Q And you also testified there was some parts
that were on the property. Did you take pictures of
'those?
A Well, let's see here. We've got the chasis.
It's a part. And, a lot of stuff is under--remember I
said the first time, is under the tarps. And there
appears to be a Township sign there too. We never
discussed that yet. But, it's not clear in the photos
about the parts. I think more of them were in the
backyard.
Excuse me just a minute. Let me
I conferred with another Member
'I'HE CHAIRMAN:
just tell you something.
of the Board here.
We're going to run into some time lines. If
we're not finished or close to being finished by nine
o'clock I'm going to recess this meeting and reconvene it
next month.
MR. WEBBER: I only have a few mot'e questions.
MS. WINDER: We have other witnesses.
THE CHAIRMAN: Then we may reconvene.
BY MR. WEBBER:
Q In your Enforcement Notice that you sent in June
of 1997, you indicated that there were parts of vehicles
82
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1 that needed to be removed. Is that correct, in addition
2 to the vehicles?
3 A I believe I stated right from the Ordinance,
4 inoperable or junked vehicles or parts thereof.
5 Q So, you weren't necessarily saying that there
6 was parts?
7 A I am saying there's parts there. I just can't
8 clearly show it in the pictures.
9 Q And you don't have any other photos that show
10 those parts that you're claiming?
11 A These are the bad ones that didn't take too
12 good. Well, actually the one photo does show right at the
13 garage what appears to be some type of part under a cover.
14 THE CHAIRMAN: Which photograph?
15 MR. DANNER: On Exhibit T2, December 4th. Under
16 the tarp there.
17 MR. BRESKI: That's a 350 engine.
18 MR. DANNER: So, it is a part.
19 BY MR. WEBBER:
20 Q When did you become Zoning Officer, Mr.
21 Danner?
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1996.
zoning Officer. I was appointed November 18th,
24 Q So, it was shortly thereafter, within a month,
25 that you talked to Mr. Breski about the vehicles for the
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1 first time?
2 A Yes, December.
3 Q Now, you were asked some questions about the
4 building permit and the information that was supplied by
5 Mr. Breski. Do you recall those questions that Ms. Winder
6 asked you?
7 A Yes.
8 Q Now, isn't it true that the primary use of this
9 property is for the residence? In other words, Mr. Breski
10 lives there?
11 A Yes. The entire property is a residential use.
12 Q And isn't that in fact the information that you
13 seek in a building permit application?
14 A Yes.
15 Q Did you ever tell Mr. Breski which specific
16 vehicles he had to remove from his property?
17 A No.
18 Q At any point in time from when you first
19 contacted him?
20 A I made him of notice, all the inoperable,
21 unlicensed, that have been there for more than thirty (30)
22 days that are uncovered.
23 Q You were telling him and your position all along
24 was that he had to remove all of them?
25 A That have been there unlicensed, inoperable,
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parts thereof and such--I'm abbreviating now--for more
than thirty (30) days. And, remember we got licensed and
Chey expired and then they set around for more than thirty
(30) days. Licensed after 1991.
Q You didn't tell him which ones though?
A No.
Q You just told him any that were in that
condition that you just described?
A Yes.
MR. WEBBER: No further questions.
MR. RUNDLE: Redirect?
REDIRECT EXAMINATION
BY MS. WINDER:
Q Mr. Danner, did Mr. Breski ever tell you that
there were vehicles on the property that weren't
inoperable, unlicensed or junked vehicles and parts
thereof that hod been sitting on the property for less
than thirty (30) days?
A No.
Q Did he ever dispute that any of the vehicles
that were sitting up away from the house were vehicles
that had been on his propetty and were subject to the
Ordinance other than to say I think there's a grandfather
clause?
A Didn't specify any on the property in the back.
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Q No specific discussion?
A Basically what I went by on the 21st was had a
license after '91 and they all expired, registrations,
inspection st.ickers. Made a list of those. One of the
Supervisors did.
~lS. WINDER: I have no other questions.
MR. WEBBER: I'll follow up on that.
MR. DANNER: Okay.
RECROSS EXAMINATION
BY MR. WEBBER:
Q Are you saying t.hat you only wanted him to
remove the vehicles that were placed on the property after
1991?
A No. Remove all the vehicles that have been on
the property for more than thirty (30) days unlicensed,
inoperable or junked vehicles and parts thereof, that have
been there for more than thirty (30) days uncovered.
There's nothing prohibiting him from putting them under a
covered structure.
Q What about 1991? You were just answering her
question.
A The Ordinance says there for more than thirty
(30) days. And when I first saw the vehicles on the first
pictures, you can Bee in the pictures that clearly they're
many months later. Actually it's a year now.
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6 RECROSS EXAMINATION
7 BY THE CHAIRMAN:
8 Q There was a letter written to you on July 22nd,
9 Exhibit A4 here, in which the Breskis requested or stated
10 that the use of their property in this manner constitutes
11 a nonconforming use, which is permitted by the Ordinance.
12 Why didn't you allow a nonconforming use following that
13 letter?
14 A Prior to receiving that letter the Supervisors
15 had already passed and made a decision to proceed with the
16 District Justice Complaint. And I referred him to our
17 Township Solicitor. They had already made their decision
18 to start action.
19 Q They had made their decision?
20 A The supervisors ordered the solicitor to film a
21 Complaint. The Complaint wasn't filed at that time. They
22 ordered her to do that. They made the decision and I
23 can't change their decision.
24 MR. RUNDLE: Lance, any questions?
25 MR. HEBERLIG: A little follow up on Dave's.
87
THE CHAIRMAN: Any furthor questions?
MR. WEBBER: No further questions. No.
MR. RUNDLE: Do any Board Members have any
questions?
THE CHAIRMAN: I do. I have a question.
1 What did you ask him just now, Dave?
2 THE CHAIRMAN: Why he didn't allow a
3 nonconforming use following the July 22nd request of the
4 Breski's attorney.
5 RECROSS EXAMINATION
6 BY MR. HEBERLIG:
7 Q Okay. And, the date of that is the 22nd of
8 July. That's a month after the June letter from Mr.
9 Danner to Breskis. Right?
10 A Thirty days after.
11 MR. HEBERLIG: I was just checking the dates
12 here.
13 RECROSS EXAMINATION
14 BY MR. RUNDLE:
15 Q Mr. Danner, at any time did you investigate
16 whether Mr. Breski had, in fact, stored unlicensed,
17 inoperable or junked vehicles on his property prior to
18 April of 1991?
19 A Basically through conversations with Supervisors
20 when giving my report asking them if they knew about it
21 prior to 1991, if they'd been down there when he was
22 talking about the grandfather clause.
23 Q Is that the extent of your investigation asking
24 the Supervisors whether they knew if Mr. Breski had
25 vehicles unlicensed, inoperable or junked on his property
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prior to April of '91?
A Yes. But, it was very evident when you see
registrations and inspection stickers on the 21st.
Q Well, what I'm getting at is, for example, did
you make any inquiry of adjoining neighbors?
A No.
Q Did you make any inquiry of anyone else in the
Township as to whether or not he had vehicles on his
property prior to April of '91 that would have been
prohibited under the Ordinance?
A Could possibly. I asked the Township Secretary
if she can ever remember going by there, but again she
doesn't frequent that road.
Q Do you know who was the Zoning Officer prior to
November 18th of 1996?
A Yes.
Q And that would be who?
A Greg Dunbar.
Q Did you make any investigation by questioning
Mr. Dunbar whether he had ever registered a nonoonforming
use to Mr. Breski for this property?
A No, but I'd like to explain that.
Q Go ahead.
A It was the same situation where the Township
couldn't get the records from him. We couldn't contact
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him. He abandoned the Township and would not answer
calls. The phone was disconnected and nobody knew where
he lived.
THE CHAIRMAN: You're referring to Mr. Dunbar by
he?
MR. DANNER: Mr. Dunbar. At this time I know
where he lives now, this year.
MR. RUNDLE: That's all the questions I have.
THE CHAIRMAN: Ms. Winder, you said you had some
other witnesses you wanted to call?
MS. WINDER: Yes. I wish to call Mr. Bender.
THE CHAIRMAN: Mr. Oender.
(Short pause for stenographer to change paper.)
THE CHAIRMAN: Let's take about a ten minute
recess.
(Recessed at 8:55 p.m., and reconvened at
9100 p.m.)
THE CHAIRMAN: If everyone is ready, we'll
reconvene.
Whereupon,
HAROLD BENDER
having been previously sworn or affirmed, according to
law, testified as follows:
DIRECT EXAMINATION
90
1 BY MS. WINDER:
2 Q Mr. Bender, for the record will you state your
3 name and address?
4 A My name is Harold Bender. I am a Hopewell
5 Township Supervisor. I live at 145 Shippensburg Road,
6 Shippensburg, Pa.
7 Q And, Mr. Bender, how long have you been a
8 Supervisor?
9 A Since January of 1991.
10 Q And what position do you hold on the Board of
11 Supervisors?
12 A At the present time I'm Chai.rman of the Board.
13 Q And in December of 1996 were you also?
14 A That is correct.
15 Q Now, in December of 1996, do you recall having
16 any conversation with Mr. Danner about visiting Mr.
17 Breski's property on Zion Road?
18 A We've had numerous conversations with our Zoning
19 Officer in reference to this particUlar property.
20 Q Had there been any discussion that you recall
21 previously with Mr. Dunbar about the property, the Breski
22 property?
23 A I would have to check my records on that.
24 Q Right now you don't recall?
25 A No, I do not.
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Q And do you recall a discussIon, initially with
Mr. Danner, about Mr. Dreski's failure to obtain a
building permit and a zoning permit for the property at
Zion Road?
A Yes, I do.
Q And, was it requested that Mr. Dannor go to the
Breski property to investigate that complaint?
A The supervisors instructed Mr. Danner to talk to
the owner of the property and tell him that he was in
violation of the--
MR. WEBBER: Excuse me. I'm going to object to
the relevance. We've already discussed the fact that
there was a building permit issue. I'm not sure what that
has to do with the nonconforming use and the vehicle
situation.
THE CHAIRMAN: I'm going to allow her to go
ahead. Go ahead.
BY MS. WINDER:
A The reason for that was that there was a
building being built without proper permits. We weren't
aware of what the use of the building was going to be.
Since he was also the Sewage Officer, we felt
there may have been a bathroom added into it, which would
constitute looking at the septic system, and possibly a
building being built for commercial use. So, we
92
1 instructed him to pay a visit to the property.
2 Q And did Mr. Danner report back to the Board
3 then?
4 A Yes, he did.
5 Q Was there any discussion about the fact that Mr.
6 Breski had on his property lots of vehicles which appeared
7 to be in violation of the Ordinance?
8 A He mentioned, after his return from looking at
9 the building, that there were numerous vehicles that he
10 observed on the property.
11 Q Did he say that he had discussed with Mr. Breski
12 these vehicles?
13 A I think his first visit was that he made contact
14 with the younger of the two sons to discuss the building
15 part of it. And then, I think, after that was when Mr.
16 Danner made mention in his next report back that there was
17 a discussion about the vehicles on the property.
18 Q Now, the question was asked of Mr. Danner
19 concerning registration of this property as a
20 nonconforming use. Did the issue of use, land use of this
21 property, come up before the Board of Supervisors at any
22 time?
23 A It came up in reference to the building permit
24 that was issued. We noticed on the building permit that
25 it was marked for residential use.
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Q And it basically was a residence. Is that
correct?
A That is right.
Q And was there a discussion about whether or not
there was any business use of the property by Mr. Breski
as a contractor?
A We as Supervisors had concern that there was
possibly a repair shop with the amount of vehicles and a
commercial use venture there.
Q Now, did Mr. Danner make mention to the
Supervisors of any request by Mr. Breski that this
property be designated as some sort of a nonconforming use
under the Zoning Ordinance?
A The only wording that I heard was thfft
Mr. Breski was referring to it under a grandfather
clause.
Q And are you aware that the Ordinance does
provide for existing nonconforming uses?
A Yes, it does.
Q New, with respect to vehicles unlicensed,
inoperable or junked vehicles on a property, is that
section contained in the Supplemental Regulations portion
of the Zoning Ordinance?
A That does not fall under the Residential
Section. It falls under Supplemental.
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Q And was it your understanding ~hat all of those
regulations applied to every land use in every Zoning
District?
MR. WEBBER: Objection as to what his
understanding is of the Ordinance.
MS. WINDER: I think he can explain.
'rHE CHAIRMAN: sustained.
BY MS. WINDER:
Q Mr. Bender, I'm not asking you for a leg~l
conclusion. I'm asking you for your view of whether or
not Mr. Breski had any kind of nonconforming use?
A In my understanding, in reading the zoning Book,
we discussed it between the Supervisors and we felt that
that nonconforming use did not apply to that Residential
District.
Q Now, this is actually a residential use in the
Agricultural District. Is that correct?
A That is correct.
Q And as to a residential use, your common sense
leads you to believe that what would be involved?
A You mean use wise?
Q Yes.
A Use wise would be strictly residential purposes
for one and two family dwelling units, non-stockpiling of
outside vehicles like this.
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Q Would you expect that in the usual residence in
the Township there would be unlicensed, inoperable or
junkod vehicles on the property?
MR. WEBBER: Objection.
MS. IHNDER: I believe that Mr. Bender may
testify as to what he would expect. There is a general
view of what is included within a residential use. I'm
not aSking him for a legal opinion. I'm asking him for
his--
5
THE CHAIRMAN: Can you rephrase it then, please,
if you're aSking his opinion?
BY MS. VlINDER:
Q In your opinion, Mr. Bender, do you have any
expectation with respect to vehicles, how vehicle use
would be connected with a typical residence in Hopewell
Township?
MR. WEBBER: I'm going to object again, among
other grounds relevance.
THE CHAIRMAN: Let her finish. She's asking his
opinion. His opinion was key in making a decision that
affected Mr. Danner's decision, so I want to hear what he
has to say in response to this. Ms. Winder.
BY MS. IHNDEH:
Q Mr. Bender?
A In the eyes of a Township Supervisor, and also
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1 in my profession as a Code Enforcement Officer in the
2 electrical, bUilding, plumbing and mechanical trade, I do
3 enforce codes from Lancaster to Bedford.
4 When we do get into residential sections,
5 residential districts, you look at the residential
6 district as being a residential area of houses, a garage
7 or carport areas, not an accumulation of unlicensed,
8 inoperable vehicles or junk of any nature.
9 Q But, with respect to your expectations, your
10 opinion with respect to residences in Hopewell Township,
11 what would you anticipate?
12 A Well, as a Supervisor we're trying to set a
13 pattern for the health and safety and the welfare of the
14 public in the residential districts, in all districts
15 really, to prevent an accumulation of vehicles or
16 equipment, whatever, to protect the property values and
17 the health and welfare of the neighbors.
18 Q How long have you lived in Hopewell TownShip,
19 Mr. Bender?
20 A I've lived in Hopewell Township for
21 approximately 37 years.
22 Q And as a resident in the Township and in your
23 profession as an inspector, do you get out and about
24 around the TownShip?
25 A Yes, I do,
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l Q And have you seen typical residential
2 properties?
3 A Yes, I do.
4 Q And some of those are also in the Agricultural
5 District. Is that right?
6 A Yes, they are.
7 Q Would it be typical to see a residential
8 property in the Agricultural Zone that has cars parked on
9 it as are shown in Township's Exhibits 2,3,4 and 5?
10 MR. WEBBER: For the record, I'm going to object
11 to the relevance of this.
12 'I'HE CHAIRMAN: sustained. Do you want to
13 address that in another way?
14 MS. WINDER: I think he's able within his
15 experience to testify as to whether that is a common
16 observance in the Township.
17 MR. RUNDLE: Is that in any way relevant at this
18 point?
19 MS. WINDER: It's only relevant to Mr.
20 Breski's argument or position that this is something
21 that the Supervisors should have been cognizant of and
22 have permitted in some nature by allowing it to be
23 ongoing.
24 THE CHAIRMAN: I will sustain your objection.
25 Do you have any other questions, Ms. Winder?
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Q
BY MS. WINDER:
Mr. Bender, have you visited Mr. Breski's
property?
A
Yes, I have.
Q And when did you go there?
A 'rhat was on September 8th, 1997.
Q And with whom did you go?
A Jeff Danner asked Marlin Hoover and I to
accompany him to the property for verification on the
vehicles and ~quipment that was on the property.
Q And I show you what's marked T4 and T5, and ask
you if those fairly and accurately represent what you
observed about the 8reski property on September 8th?
A Yes, it is.
Q And wh"t did you observe?
A We observed there were vehicles at the house.
There may have been a couple vehicles in the garage.
There was one that was tarped there at the house.
But, what we found up along the driveway, and up
along the field, these vehicles, a lot of these vehicles
were able to be observed from the Zion Road. There were
16 vehicles, one automobile body and one frame.
Q Now, was Mr. Bres};i at the property on that
day?
A Yes, he was.
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1 Q Did he approach you and tell you that he thought
2 that his hobby of restoring these vehicles meant that this
3 was a use that was permitted and that had been an ongoing
4 proposition for him, from the time that he had built his
5 house in 1987?
6 A No. Jeff Danner approached Mr. Breski and his
7 one son. They were there in the driveway moving some
8 vehicles. We introduced ourselves. Of course, he knew
9 who we were. We introduced ourselves, as we should, and
10 told him the purpose of the visit.
11 We asked him if we could take a look at the
12 vehicles. He said, Yes. We asked him to accompany us on
13 the walk, and he said, No. He said, I'll be here at the
14 shop. You go ahead. And, so we proceeded to take a look
15 at the vehicles and mark them down.
16 Q Did you walk up alongside the vehicles?
17 A Oh, yes.
18 Q Did you observe any work that appeared to be
19 restoration of these vehicles?
20 A The only one that I saw possibly any work being
21 done on was what was down at the house under a tarp or one
22 that was in the garage area. I saw no restoration work.
23 I saw no restored vehicles on the property whatsoever in
24 this area.
25 Q And, did you observe license plates or
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1 inspeotion stickers on some of the vehicles?
2 A We made a specific note to look at all the
3 inspection stioker dates and license plates that were on
4 the vehicles, of the 16 vehicles that were up in the
5 field.
6 Q And does your list and do your observations from
7 that date confirm what Mr. Breski has said here today that
8 there were vehicles that were running at some time after
9 1991, and then were placed on this property as unlicensed,
10 inoperable or junked vehicles?
11 A Yes. There were at least four, due to the date
12 on the inspection stickers that had long expired, but they
13 were between 1992 and 1996.
14 None of the vehicles had any license plates on
15 except there was a Dodge pickup truck that had an
16 inspection sticker dated 12 of '85 and a license plate
17 dated June of '86. None of the other vehicles had any
18 license plates on at all.
19 Your question also was, did Mr. Breski discuss
20 the vehicles or anything with me? No, Mr. Breski has not
21 discussed any vehicles with me or anything pertaining to
22 this matter to this date.
23 Q So, after ~ecember of 1996, when Mr. Danner said
24 he went to the property, you never got any telephone call
25 from Mr. Breski?
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A Never.
Q He never came to a Township meeting?
A Mr. Breski came to one Township meeting one
night. He did come in the door and I believe he stayed
for maybe five minutes, and he left, did not discuss or
even address the Supervisors in any manner.
Q And did the Board, prior to June 21st of 1997,
direct Mr. Dannor to sBnd a notice of violation to Mr. and
Mrs. Breski, a copy of which has been marked as A1?
A The Board did ask to have notification sent to
him by regular mail and certified mail.
Q And, after June 21st of 1997, did you ever
receive any notice in any form, whether by a message, a
direct contact with you/ verbally or in writing from Mr.
Breski ooncerning the status of vehicles on his property?
A None.
Q And did Mr. Broski, at any time up to two days
before the District Justice hearing in September on this
issue, ever file any notice or present anything to the
Supervisors that verified an existence of unlicensed or
inoperable vehicles on his property, prior to the adoption
of the Ordinance or aSking for any kind of certification
as any kind of nonconforming use?
A No, he did not.
MS. WINDER: I have no other questions.
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MR. RUNDLE: Cross.
CROSS EXAMINATION
BY MR. WEBBER:
Q Mr. Bender, what about my letter dated July
22nd, 1997, which was labeled as Applicant's Exhibit 4?
Did you ever see that letter?
A Yes, I have.
Q But, at that time or as of the date of that
letter, the Township had already voted to file a District
Justice proceeding. Is that correct?
A Word that again to me, please?
Q When did the Township vote to initiate District
Justice proceedings?
A I'd have to look at the Township records on
that. I really cannot ~nswer that.
Q Do you recall if you had a meeting on July 21st,
19977
A If that was the third Monday of the month that
would have been a Township meeting.
Q Could you look at the calendar behind you here
and tell us for sure whether or not you had a Township
meeting on the 21st of July?
A That should have been a regularly scheduled
meeting.
Q And isn't it true that on that date the Township
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voted to initiate a District Justice proceeding against
Mr. Breski?
A I don't have my Township minutes with me.
Q Well, when was your next meeting? Did you meet
just once a month?
A No, we meet twice a month. The next meeting
would have been August 4th.
Q You don't recall whether or not you received a
copy of my letter before or after you voted to initiate
the District Justice proceeding? If you recall?
A No. We met July 21st. Your letter is dated
July the 22nd.
Q Right.
A We would not have had this copy.
Q Okay. But, you don't know for sure if you voted
on the 21st?
A Not without looking at the Township minutes.
Q But, it could have been the 21st of July?
A Possibly.
Q And if it wasn't the 21st of July it would have
been the very next meeting. Correct?
A I'm not going to answer that because I don't
know without looking at the Township minutes.
Q Do you recall when the District Justice
proceedings were filed?
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A Not without looking at the minutes.
Q But, isn't it true that the Township Supervisors
never responded to my letter dated July 22nd?
A Your letter was addressed to Mr. Jeffrey
Danner.
Q Okay. And did Mr. Danner present that to you?
A Mr. Danner did present that to us.
Q And did you direct Mr. Danner to respond to
me?
A We would have either directed Mr. Danner or our
Solicitor to make contact with you.
Q But, do you recall giving direction to anyone to
contact me concerning the contents of my letter dated JUly
22nd, 1997?
A I was under the understanding that you were
contacted.
Q By who?
A Either by Jeffrey Danner or by our Solicitor,
Sally Winder.
Q Do you recall if the Township took a position on
the issues that I raised in that letter?
MS. WINDER: I would object. I really don't see
the relevance.
THE CHAIRMAN: Overruled. Go ahead.
BY MR. WEBBER:
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A Your letter addresses classic vehicles, vehicles
on the propert.y.
I also used to be a oollector of automobiles
back in the 50s. When I look at a classic automobile
today I look at a classic vehicle that is restored, over
25 years old, has a classic license plate on and in use or
in storage restored.
I saw no classic vehicles there. I saw vehicles
there dated into the 50s. I saw them sitting there
rusting away.
Q And that's the position the Township took?
A No. That is what I saw. The Township looked at
it as being a potential junkyard of these vehicles.
Q What about the nonconforming use issue,
grandfather clause, whatever you want to call it?
A The grandfather clause is not addressed in the
Code. As a Zoning and Code Enforcement Officer under the
BOCA and CABO Codes in my full-time job, 1 know of no
grandfather clauses.
Q What about in your Zoning Ordinance that the
Township enacted back in April 1991, isn't there a section
dealing with nonconforming uses?
A Nonconforming uses, but you have different
applications for nonconforming use.
Q So, basically you're saying that the Township
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1 supervisors decided that the nonconforming use section was
2 not applicable in this case?
3 A I'm not sure we really took that position on
4 that. The reason for--
5 Q Okay. You answered my question.
6 A Alright. Go ahead.
7 Q And the bottom line is, nobody responded to me
8 or Mr. Breski about the nonconforming use issue that I
9 raised in that letter?
10 A We have discussed that.
11 Q But, you didn't respond to either Mr. Breski or
12 myself?
13 A Mr. Breski refused to talk to me in regards to
14 this matter.
15 MR. BRESKI: When did I do that?
16 THE CHAIRMAN: Excuse me.
17 BY MR. WEBBER:
18 Q When did he refuse to talk to you?
19 A When we were at the property.
20 Q And that was September 8th, 1997. Correct?
21 A That is right.
22 Q And that was two days before a District Justice
23 proceeding. Correct?
24 A What I'm referring to--
25 Q I'm asking you was that two days before the
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District Justice proceeding?
A That's right.
Q And you were there to take pictures to present
as evidence in the District Justice proceeding.
Correct?
A We were there for verification for Mr. Danner's
support.
Q That was your purpose in being there. And, you
didn't ask him about the history of these vehicles or
anything like that, did you?
A We had requested Mr. Breski to appear before the
Board of Supervisors through Mr. Danner and he had refused
to come before the Board. That is where the matter should
be discussed.
Q Did you investigate my contention that this was
a nonconforming use?
A I've looked at several aspects of it.
a Tell us what exactly you did to investigate it?
A When you say investigate?
Q Did you attempt to gather any facts concerning
the history of the use of this property?
MS. WINDER: I would object. The question
basically is aSking for a determination of a legal fact.
MR. RUNDLE: The question was, was an
investigation made?
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THE CHAIRMAN: That's right.
MS. WINDER: The issue is whether or not it's a
nonconforming use. A nonconforming use has to do with
land use. The land use has already been designated here
and agreed by the Breskis to be a residential use in the
Agricultural District.
THE CHAIRMAN: I'm going to allow it to proceed.
continue with your question.
BY MR. WEBBER:
Q Did you investigate the facts relating to the
history of the use of this property, at any point in
time?
A other than the fact that, from what I could
see from the road, that there were vehicles on the
property.
Q So, there was no concern about whether or not he
had used the property in this manner prior to 1991. Is
that correct?
A No. I'd have to say, no.
Q Now, you testified Mr. Breski never discussed
the grandfather clause and the nonconforming use issue
with you. Did you ever initiate any contact with him?
A Our contact with Mr. Breski has been through the
Zoning Officer with the letters addressed to appear at the
Township Board of supervisors' meeting, and that has never
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taken plane. Mr. Breski has not taken initiative to comB
forward to us.
Q And, you didn't take any initiative to go to him
and ask him or investigate?
THE CHAIRMAN: He has already said that he made
his contact through the Zoning Officer.
BY MR. WEBBER:
Q Mr. Bender, you testified as to a building
permit case that you had against Mr. Breski. Isn't it
true that the Township was very upset with Mr. Breski in
that matter?
A Mr. Breski--
THE CHAIRMAN: Excuse me just a minute. We have
a little bit of interruption.
(Short pause because of noise interruption.)
BY MR. WEBBER:
Q My question to Mr. Bender, wasn't it true the
Township Supervisors were very upset with Mr. Breski
because he failed to obtain a building permit for his
addition?
A That is true. Mr. Breski did not take out a
permit and we asked him to come in and make out an
application, and he failed to do so.
Q Okay. And it was as a result of those
proceedings that the Township first raised--or that Mr.
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Danner first raised the issue of the vehicles?
A That is not true.
Q When was the first time that Mr. Breski was
contacted about the vehicles?
A The vehicles came about due to the supervisors
doing their road work along Zion Road, and a discussion of
a culvert in front of the Breski property was a problem.
Mr. Marlin Hoover and Mr. George Hoover brought
that to the Board's attention of the building being
erected without permits and also the excess amount of
vehicles on the property.
Q Is it safe to say that the relationship between
Mr. Breski and the Township has not been amicable since
last Autumn of 1996?
A Mr. Breski has been uncooperative with the
Township Board of supervisors.
Q And the Township supervisors have been upset
because of that. Is that true?
A No. The Township Board of supervisors has not
been upset. The Township Board of supervisors are only
doing their job to make sure that people do take out
building permits and to see that the Codes are adhered to.
That's what we were elected to do.
Q What is the Township's position concerning these
vehicles? Is it the supervisors' position that all
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1 unlicensed or inoperable vehicles should be removed from
2 this property?
3 A Under the zoning Ordinance, the way it is
4 worded, that is true. We are not singling out Mr.
5 BresJd.
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12 him tell you his position.
13 BY MR. WEBBER:
14 A The Township Board of supervisors, in my last
15 six years as a Supervisor we have pinpointed several other
16 places in Hopewell Township. We have not been going out
17 here and knocking on doors and enforcing the Code.
18 We have been working on complaints, trying to
19 bring the people in compliance, giving them time to corne
20 in compliance with the Zoning Board. We're trying to work
21 with the people in the Township.
22 We don't want to see things like this happen to
23 grow and create a problem. We have been working with DEP.
24 At that time with DER in HarriSburg on properties in the
25 Township. And, we're trying to work, to make it a good,
Q I'm not aSking you that.
A Alright.
Q I'm aSking--
1'HE CHAIRMAN: You asked--
MS. WINDER: certainly is.
TI'IE CHAIRMAN: You asked for his position. Let
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sound place for growth in the Township.
Q Tell us what you want Mr. Breski to do? I guess
I should rephrase my question in that manner.
A The Township would like to see Mr. Bresk!, if he
wishes to pursue his business of restoring vehicles,
restoring them. And I have no problem with that as long
as, if he wants to have them there, tarp them or put up a
building to put them in, as the Code calls for.
As a Supervisor, I feel that 21 vehicles sitting
on the lot is-- I don't see 21 vehicles being restored in
Mr. Breski's lifetime.
Q so, you're saying that if you see evidence of
restoration and if he tarps them or puts them in a
building that will satisfy the Township?
A When you say tarp them?
Q You said it. Tell me what that means?
A Well, naturally we're not going to want to see
21 tarps out there in the field. We have to look at it
from the neighbors' standpoint also.
THE CHAIRMAN: Do you have further questions?
BY MR. WEBBER:
Q Did you ever tell Mr. Breski which specific
vehicles he should remove from his property?
A No, we have not.
Q And you don't really care that he has to move
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those as long as he tarps them or shows evidence of
restoration?
A What I'm saying is, as a Township Supervisor,
we're not asking for 21 tarps out there in the field.
Q What are you asking for?
A If he wishes to restore vehicles there at his
home, he could either put up a building to put them in, or
if he has several down that he's working on as long as he
tarps those, that would be fine.
Q Well, you hear.d the testimony from Mr. Breski
that he was restoring these vehicles.
A Well, possibly to a degree.
Q But, it's not as extensive as the Township
wants. Correct? Yes or no?
A The Township would like to see the vehicles
either put in a building, if he wants several vehicles
down there at his house he's working on with that, which
he is doing. He has got them inside. He has got one out
there sitting outside that is tarped now. I don't think
the Township is going to take a hard stand on that. Our
problem is with the excess vehicles.
MR. WEBBER: Thank you.
MR. RUNDLE: Redirect, Ms. Winder. Any?
MS. WINDER: No.
MR. RUNDLE: Questions by the Board?
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MR. HEBERLIG: No.
MR. RUNDLE: Mr. Rutherford?
CROSS EXAMINATION
BY THE CHAIRMAN:
Q I just have one observation. The Ordinance
doesn't mention tarps anywhere. It says structure,
building or structure. It doesn' t mention tarpaulin.
I'm just wondering if ~he Township Supervisors
are allowing some leeway within the application of the
Ordinance here by allowing vehicles to be tarped as
opposed to being in a structure?
A What I was referring to there, David, is if he's
working on a vehicle and he pushes .it outside and he want.s
to tarp it and he's bringing it back in for r~storation.
We're looking at the building end of it.
CROSS EXAMINATION
BY MR. RUNDLE:
Q Mr. Bender, prior to April the 1st of 1991, ate
you aware of any Ordinance t.hat would have prohibited Mr.
Breski from having inoperable, unlicensed or junked
vehicles sitting on his rroperty?
A Prior to April of 1991?
Q Yes.
A I know of none in the Township.
Q so, would it be a fair statement that prior to
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C.,
April the 1st of 1991, he could have had as many vehicles
as he wanted sitting on that property and it would have
been a lawful use of that property?
A Prior to the Township having zoning it
would fall under the County Control for regulations.
At that time that would have also been zoned
agricUltural/residential.
Q Prior to April of 1991 it wasn't zoned at all,
was it?
A That is true.
Q so, my question is, on March 31st of 1991,
assuming that Mr. Breski at that time had, let's say, 16
vehicles all inoperable, all unlicensed, sitting on his
property, would that have been an unlawful use of the
property on that day?
A Probably not under County rules.
Q
And when the Zoning Ordinance was adopted on
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April the 1st of 1991, it contained a provision in it
under 10.01 that the lawful use of a building or premises
existing on the effective date of the Ordinance may be
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continued although such use does not conform with the
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provisions of this Ordinance. Is that correct?
A Well, depending how you want to i.nterpret
that.
,
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Q I'm just asking if that's what your Zoning
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Ordinance says?
A My interpretation is that we have a--
Q sir, I didn't ask you for your interpretation.
Does tho Zoning Ordinance says that?
A The only way I can tell you that is to give my
interpretation of the Zoning Book.
(Document shown to witness.)
BY MR. RUNDLE:
A The lawful use of a building or premises
existing on the effective date.
Q On April 1 of 1991?
A The residential property in an Agricultural Zone
design~d for residential use.
Q Now, you've been a resident of the Township for
37 years?
A Give or take a year.
Q Are you personally familiar with whether Mr.
Breski, prior to April 1st of 1991, had inoperable,
unlicensed or junked vehicles stored on his property
outside, not under structure?
A No, I am not.
MR. RUNDLE: I have no other questions.
THE CHAIRMAN: Is that the extent of your
testimony on both pro and con?
MR. WEBOER: Yes.
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MS. WINDER: We would move the admission of the
other Township exhibits,
MR. WEBBER: No objection.
MR. RUNDLE: All exhibits admitted, Mr.
Rutherford?
THE CHAIRMAN: Yes.
(Whereupon, Township's Exhibit Nos. 2,3,4 and 5
were admitted into evidence.)
MR. DANNER: When can I get my pictures back
then?
THE CHAIRMAN: I'm not sure.
MR. DANNER: If there are any other Court cases
I ' 11 need them.
MS. WINDER: They will be a part of the record.
THE CHAIRMAN: They'll be available.
The Board has heard the testimony. We're going
to adjourn.
MR. RUNDLE: Hold on before you adjourn. I see
other members of the public here. Are there any other
members of the public that wishes to offer testimony with
respect to this hearing?
MR. DANNER: I have one statement. I'm not a
member of the public. I feel that any discussion or
decision or even discussion of decisions should be done in
an open meeting in the public, no closed meeting should be
118
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of any discussions.
THE CHAIRMAN: Thank you.
MR. RUNDLE: Seeing no other members of the
pUblic that wishes to offer testimony, then the record can
be closed.
THE CHAIRMAN: We have hoard the testimony. We
will adjourn. We have forty-five (45) days to reach a
decision. We will reconvene to tell you what our decision
i.s.
MS. WINDER:
MR. RUNDLE:
MR. DANNER:
that pUblic meeting.
MR. RUNDLE:
THE CHAIRMAN:
MR. DANNER:
announce your decision.
When will that be?
Within forty-five (45) days.
Your decision has to be made at
That is correct.
That's correct.
You just said you were going to
That assumes that you are going
to make the decision beforehand.
MR. RUNDLE: Mr. Danner, the decision is made
when the Board votes on the decision.
said.
MR. DANNER: But, that wasn't the way it was
,
THE CHAIRMAN: We're adjourned. Thank you.
(Adjourned at 9:46 p.m.)
119
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,
CER1'I FICATlON
I hereby certify that the foregoing proceedings
were taken stenographically by me, and thereafter reduced
to typewriting by me or under my direction and that this
transcript is a true and accurate record to the best of my
ability.
(7 f'Lf.''L~l .;Pil~'1..fA~'>fUfV~
Cheryl Farner Donovan
Notary PlIbli.c, Cumberland COllnty
My Commission Expires July 23, 1999
(The foregoing certification of this transcript
does not apply to any reproduction of the same by any
means unless under my direct control and/or supervision.)
120
I'RAE:CIPF, FUrl LISTIN(;__~AS~"E.:9.B-!'I~,Qy'M_~:_~~
.._.._---~_.._~-_._- ._._~. --"---..-----
(Must b13 tYP13written arrl sutmitted in duplicate)
TO THE PROTHONOTAIlY OF' CUMBERLAND COUNTY:
Please list the within matter for the next Arg\.IOOnt Court.
---------------..-----..--------..------..----------------------------------------..--------
CAPTION OF CASE
( ent:ire caption mus t be s ta ted in full)
J()~~>fh n e((lS"k.( (t"" L
NC((\( c} 6rJ:'/Skl"
o A PjX'UCt.~( $
( Plaintiff)
VB.
1+c,~e/!"eLI -T6L,dYlSh"f
?un; 'ej- Het:v) (~ &J(,t 17"l
( '- A ppeLLeL
( lX!ferxiant )
~. q S'-cJ~~;) Civill7?{'W\
19
1. State matter to be argued (Le.. plaintiff's mUon for new trial, defendant's
daron-er to canplaint, etc.):
ApreIICl;f\'t._> tJO~7'(C ,)fj]P{;f'tC~ ,6t:1YVI ti..t (jt';:,c dYI (l-
thftlvr'{{ /(.Jt'l!!I!:'~(;: 2"II (I '.() /)c't'(Jlll() f)tJ({ r,,;( ~c I' 11"/7 c,
2. Identify counsel who' argue ca;.b: (j , . . , .J 1 t'
') ,
(a) for ~t:: hfl{'fL:(r~,e~, KIc/\/JJ?l ( (rb0k}tJ< Jr: l
Address: 3~: l" (1m,) fi ::t.("" 'j' /-'et fJ (), ..go'" tl-O \
N (1/11,) vd leI )1, I?.,).. <I /
(b) forde~C1..dant:/lpf~.'/{/):. .C;:/t."J -/ (t/,'"tl/
Address. 7(!/, C:, /, I 2f (){1'",4.1/
() f/Y/Jl <1-, /', r~) (/1 I -, d S')
3. I will notify aU parties in writing within \:1oQ days that this case has
been Listed for argurcnt.
4 . Argt.rrent Court nate: ()i fir"d, ~,~ ;11/'
Dated:
(~/L,j tdL/~/~-
^'tt:orneyl for ~'It "; 1,'tj(') l7. (
, fl:, "'[ , (J')
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98-0252 CIVIL TERM
Accordingly, the Zoning Hearing Board did not err when It found that only seven
rather than eight vehicles were stored on the Breskls' property as of April 1, 1991.
Therefore, we reject appellants' claim that the nonconforming use should be for eight
vehicles. Based on the parties' stipulation, we will reverse the Zoning Hearing Board
and enter an order providing that the number of vehicles constituting appellant!)'
nonconforming use Is seven, not six,
ORDER OF COURT
AND NOW, this .-s."'~ day of March, 1999:
(1) Based on the stipulation of the parties, the decision of the Zoning Hearing
Board of Hopewell Township, IS REVERSED.
(2) The Breskls' storage on their property outside of a completely enclosed
building or structure of a maximum of seven (7) unlicensed, Inoperable and/or Junk
motor vehicles constitutes a nonconforming use.
(3) Storage of more than seven (7) unlicensed, inoperable or junk motor
vehicles on the Bresl<is' propel1y for a period in excess of thirty (30) days outside of a
completely enclosed building or structure would constitute a violation of the zoning
ordinance.
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mWEWELL TOWNSHIP
CUMBERLAND COUNTY
257 Newburg Road
Newburg, PA 17240
01
1
VIA REGULAR AND CIi:RTIFIEI) MAIL P 418564 470 AND HAND DELIVERED
June 21, 1997
Joseph A. and Nancy L. Brcski
217 Zion Road
Newburg, PA 17240
Re: 217 Zion Road, Newburg
T.P. 11-07-0491-021 & T.P. 11-07-0491-036
Dear Mr. Joseph A. and Nancy L. Breski:
As the owner of record of the above referenced pl'Operty, 1 am once again con!actlng you regarding
the accumulation of inoperable. unlicensed, or junk motor vehicles at this location.
In December I visited your properly alld could clearly see that ten unlicensed, inoperable, or junk
motor vehicles and parts are parked in the side yard and backyard of your properly. On December
6. 1996, I sent you a leller with copies of the zoning ordinance informing you that the accumulation
of these unliccnsed, inoperable, or junk motor vehicles is a violation of the Hopewell Township
Zoning Ordinance Article 11.03 C. (Page 66 & 67).
On June 21. 1997 , I visited your property to verify the information in your zoning application for
the addition to your dwelling. At this time I could see that at least ten or more complete or parts of
unlicensed. inoperable, or junk motor vehicles remain located in the sldeyard and backyard of your
property. These vehicles are clearly the same vehicles that I photographed in December 1996. The
keeping of these unlicensed, inoperative, or junk vehicle on your property for more than thirty days
is a violation of the about referenced Township Zoning Ordinance Article 11.03 C ( a copy this
Article is at!ached). The above referenced vehicle are not enclosed in any structure.
I am making you aware, by means of this leller, that if these violations are not corrected within
thirty days from receipt of this notice, the Township will have no other choice than to file a
citation with the District Justice.
You may appeal this Zoning Enforcement Notice to the Hopewell Township Zoning Hearing Board
by contacting the board's Secretary Lance Heberllg 24 Shuman Road Newburg or by telephone at
423-5393.
Please address this situation immediately to avoid further action. AllY cooperation 011 your part will
be greatly appreciated. Should you have any questions you nUlY contact me at my home telephone
number 776-4260. Or you may contact the Hopewell Township Secretary Alverda Ocker at 423-
5570.
S i ncerel y ,
~.~~n~~
Zoning Officer
cc: Township Files, Sally Windcr
Attachments: Letler dated Dl:cember 6, 1996, Zoning Ordinance Page 66, 67
UU6 f! ..;;.
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9. Light Olare.
Dlreot Light Glare. Dlreot light glare Is defined for
the purpose ot thla ordlnanoe as Illumination beyond
property linea oaused by dlreot or speoularly refleoted
I'ays troll Inoandeaoent, tIuoresoent, or aro light I ng/ or
from suoh high te.perature process as welding or
petroleull or Iletallurglcal refining. No suoh dlreot
glare shall be perllltted with the exoeptlon that parking
areas and walkways lIay be Illulllnated by IUlllnarles so
hooded or shielded that the lIaxlllulI angle of the oone of
direct Illumlatlon shall be 60 degrees drawn
perpendloular to the ground, with the exoeptlon thst such
angle lIay be Inoreased to 90 dgrees It the luminary Is
less than 4 feet above the ground. Suoh lulllnarles shall
be plaoed not 1I0re than 16 teet above ground level and
the lIaxlllulI Illu.lnatlon at ground level shall not bo In
excess 01 three loot-candles.
Indirect Light Olare. Indirect light glare Is dellned
lor the purpose 01 this ordinance as Illumination beyond
propety lines caused by dlfluse refleotlon troll a surfaoe
such as a wall or roof of a struoture. Indirect glare
shall not exoeed that value whloh Is produoed by an
Illulllnatlon 01 the reflecting surface not to exceed:
.3 loot-candles (maxlllum)
.1 loot-candles (average)
~
Deliberately Induced sky-rellected glare, as by casting a
beam upward lor advertising purposes, Is speolflcally
prohibited.
10. Liquid or Solid Wastes. No dlsoharge shall be perllltted
at any point Into any sewage disposal syste., or
watercourse, or lake, or Into the ground, eXcflpt In
acoordance wltb standards approved by the Pa. Department
ot Envlronllental Resources or otber regulating department
or agency, ot any lIaterlals of suoh nature or tellperature
as can contalllnate any water supply or otherwise cause
tbe emission of dangerous or oftenslve elemonts. There
shall be no aocullulatlon 01 solid wastes conduolve to the
breeding ot rodents or Inseots.
11.03 Prohibited Uses In All Districts
A. No use may be perllltted whloh Is noxious, ottenslve or
obJectionable by reason ot tho elllsslon ot smoke, dust, gas,
odor or otber forll of air pollution, or by reason of the
deposit, discharge or dispersal ot liquid Dr solid wastes In
any form In a Ilanner or allount as to oause perllanent dallage
to the soil and stream, or to adversely allect the
surrounding area, or by reason of the creation 01 noise,
vlbrat lon,
page 66
electro-ma~netlc or other disturbance, or by reason ot
Illumination by artificial light or light retlectlon beyond
the limIts of the lot on or trom which such light or light
reflection emanates, or which Involves any dangerous tire,
explosive, radioactive or other hazard, or which causes
Injury, annoyance or disturbance to any of the surrounding
properties or to their owners and occupants, any other
process or use which Is unwholesome and noisy and .ay be
dangerous or prejUdicial to health. safety or general
welfare.
~
~
l
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~
B. Junk yard, du.p, landfill or disposal sIte, except a refuse
disposal site established as an official Township Refuse
Disposal Site or a refuse site duly licensed as a refuse site
by the Pennsylvania Department of Environmental Resources.
~
C. No unlicensed, Inoperable or Junked motor vehlole or
substantIal remnants thereof shall be parked, stored, placed.
or allowed to re.aln on any lot within any zoning district
for a period In excess of thirty (30) days, except that
nothing shall be deemed to prohibit the parking, storage or
placement of such a vehicle within a completely enclosed
building or structure, or withIn a Junk yard with a valid
llconse and per.lt thereof.
11.04 Uses Not Provided For
In any dlMtrict established by thla ordinance, wben a specltlc
use Is neither permitted nor denied, the Board of Supervisors
Shall make a deter.lnatlon as to the similarity or compatibility
of the use In question to the permitted uses In the district
Upon receipt of an applIcation so requesting such
deter.lnatlon. No zoning permit shall be Issued by the Zoning
Oftlcer for any unspecltled use until this deter.lnatlon has
been .ade.
11.06 Ho.e Occupations
Ho.e Occupations sball be per.ltted by the Board of Supervisors
after review and recommendation of the Planning Commission
according to the following criteria:
A. It Is carried on within the dwelling unit by the family
residents of the ho.e;
B. Tbere shall be no .ore tban one (1) e.ployee otber than
tamlly residents of the hORe. no display and only one Sign no
larger than 4 square feet affixed to the home or below a
.allbox.
C. The ho.e occupation, Including storage areas, does not occupy
more than twenty five percent (25t) ot the total square
toot age ot structure;
page 67
manner falls within the t.erms of Sections 10.01 and 2,90 above.
'l'he purpose of penuit.Ling a non-conforming use is t.o avoid t.he
imposition of a hardrJh:lp upon t.he landowner. Addi tionaLly, the
refusal of a municipality to allow such continuation is of doubt.ful
consti tutional:lty, The continuation of a non.. conforming use is
permi tted in order t.o avoid a wrong, even t.hough the use may be
inconsistent with t.he intent of the Ordinance in fulfilling anothet'
public purpose. Bi'lS;JUJl~\ICY,L-~oniU~LUeal;ing,-'lQ;:\I'~'L 508 Pa.1.80, 494
A2d 1102 (1985) There is a prot.ected right to continue a
nonconforming use. J1L, re_l'u?'p'~al of S,Q.hneider, 521 A, 2d 528
(Pa.Cmwlth, 1987).
In essence / t.he 'l'ownship contends that the Breskis use of the
property in thi s manner was val id prior to April 1., 1.991 but was
immediately rendered illegal upon passa(je of the Ordinance. Such
a determination is ent.irely unfair t.o t.he landowner, The whole
purpose of "non-conforming use" le(jislation is to protect a
landowner against what would ot.herwise be an ex post facto law.
The Breskis position is that the sections cit.ed above permit
t.heir continued use of t.he propert.y in this manner, not.withstanding
the fact t.hat. the primary use of the land is resident.i.al, The
Zoning Ol'dinance fails to state that t.he non-conforming use
provisions apply only to primary uses. Additionally, there are no
other laws which I imi.t the applicabili. ty of non- conforming uses in
such a manner. Whether the use represents a hobby, active or
3
inactive, is not relevant.
2. SYl1~otA!lt..i..YoIL~blil~
A zoning ordinance provision that may appear constitutional on
its face may nevelotheless be unconfJt:itutional as it applies t.o a
part.icular situation. Euclid v. AmblI2.LRej;l.JJ;y CO'o 2'12 V,S. 365, '71
L.Ed 303,4'/ S. ct 1.14 (1.926), A zoning regulation may be struck
down on t.he basis of substantive due process considerations if it
does not make reasonable allowances for legitimate uses. tlilt,i9.lli!l
Land and Invest'oeo. v. Kohn, 419 Pa. 504,215 A2d 597 (196<,). A
municipality must enforce its regulations in a manner t.hat is not
arbit.rary or capricious and which does not violate substant.ive due
process rights of the landowners, KQrsuns~ v, lIousil19.....C.Q,9JL!ir~
l\-p~.lJ2, 660 A2d 180 (Cmwlth Ct 1995),
The Supervisors' attempt t.o enforce Section 11,03 of the
Ordinance against t.he Breskis in the manner sought, and in light of
the particular facts of this case/ is "unreasonable, arbitrary, and
capri.cious, " Since pux'chasing the property, Mr. Breski has spent
thousands of dollars each year in restoring his classic
automobiles. Expenditures have been made both before and after the
adoption of the Ordinance. The supervisors should not be pel'mitted
to stand idle while he made expendi tures prior to the date of the
Ordinance and for 6 years after its adoption and then suddenly
request him to terminate the activity.
4
If the Hopewell Township Supervisors contend that the
storage of unlicensed or inoperable vehioles is a nuisance
per se and that any such activity is illegal, their position is
inoonsistent wi th Pennsylvania law. The Commonwealth Court has
ruled that municipalities oannot si.mply declal:e a condition such cHI
the stot'age of unli.censed vehicles to be a nuisance and then
prohibit it. ]'eal_y_,-_ll<!verl.Q,f..Q, 1.34 Cmwlth 157, 578 A2d 80/ app
den 527 pa 659, 593 A2d 429.
\.:QllQl...l!e.iQIl
'['his is not a situation where the Breskis own "junk" vehicles
or are running a junk yard. It is not a case where old, valueless
vehicles are permanently rusting into the earth.
The Breskis request that they be permitted to continue to use
their property i.n the same manner as in prior years/ the use
occurring both before and after the passage of the Zoning
Ordinance, They have acquired a vested right to do so, Any
ambiguities concerning the interpretation of the Ordinance should
be construed against Township (the same body that enacted the
Ordinance). The Breski' s posi tion is reasonable in light of the
particular circumstances that exist in this case.
5
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nonconfonlllng use.
20, The Hopewell ZonJ.ng HeRring BORI'd conducted heRrings on October
15, 1997 and November 19, 1997, with respect to the milttel.'S raIsed
by Appellants,
21, On December 15,1997/ tha Board rendered a dedsIon. Attached
heret.o, made a part hereof, and labeled ExhibJ.t "A", is a true and
eorreet copy of the wdtten decisIon of t.he Board.
22, In essence, the Board held Utilt a maxImum of six (6)
unlicensed, inoperable, and/or junk motor vahIcles outside of
a completely enclosed structure, constitutes a valid nonconforming
\.1se,
23. The decision rendered by the Board is erroneous for the
following reasons:
A. As of April 1, 1991, the date of t.he enactment of the
Ordinance, Appellants stored a total of 12 vehicles on
their property that. were either unli.censed or inoperable
and located out.side of a structure. Appellants should
t.herefore be enUt:.1ed to continue to store 12 such vehicles
on theIr property out.side of an en(~losed struct.ure.
B. In addition to (A) above, Appellants should be permit.ted to
st.ore t.he following unlicensed but operable vehiclesl
(1) a 1978 Jeep Wagoneer for pllrposes of plowing snow;
4
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7 . On April 1 / 1991, the Hopewell Township Board of
supervisors enacted the current Zoning ordinance.
8. On the date the Zoning Ordnance was enacted, the
AppellantFl had ,six (6) unlicensed and inoperable motor vehicles
stored on the property, to wit: a 1959 Chevrolet EI Camino, a
1951 Chevrolet, a 1954 Cadillac, a 1971 Cadillac, and two (2)
1957 Chevrolete.
9. In April, 1991, the Appellants also had numerous
vehicles which were licensed and operational.
10. Sect ion 11.03. C of the zoning Ordinance provides that no
unlicensed, inoperable or junked motor vehicle or substantial
remnants thereof shall be parked, 8tored, placed, or allowed to
remain on any lot within any zoning district for a period in
excess of thirty (30) days outside of a completely enclosed
building or structure.
11. The Appellants property is situate within the A-l
Agricultural Zoning District.
12. ]\8 vehicles became inoperable, the Appellants removed
them from their auto insurance policy and sent the license plates
of the vehicles to the Depal"t.ment of Transportation.
13, Vehicles whIch wer.e licensed and opel:able in Apr.il,
1991. but became unlicensed and/or inoperable [ollowIng tho
enactment o[ the Zon1 nl) or.dinance include the following: a 1968
PonLl.ilc UTO, il 1975 CheVl'olet: Impala, a 1956 Chevrolet sl,atlon
wagon, a 19G" Chovlo!p!' Impalel Supernpol't, fl '19GB Chev)'o18l:
Tmpnla convpU:ib.1e, n \'1'1" nM~I, n Chevlolpt dump t.."uck, a '1981
Exhibit A-page 2
Chevrolet pick up truck, and two 1957 Chevrolets (it should be
noted that these two 1957 Chevrolets are in addition to the two
1957 Chevrolets the Appellants had as inoperable, unlicensed
vehicles prior to the enactment of the Ordinanoe) .
,
1991, the Appellants have acquired additional inoperable and/or
14. Since the enactment of the Zoning Ordinance in April,
unlicensed vehicles to include II 1966 Ford Mustang oonvertible, a
1965 Chevrolet Super Bport convertible, and a 1978 Jeep Wagoneer.
15, Only one of the unlicensed, inoperable vehicles is
Mustang convert iblc"
presently stored inside a structure, that being the 1966 Ford
16. 'The Appellants have removed engines from some vehioles
and stored them under tarps outside of any structure,
17. The 1959 Chevrolet 81 Camino has been removed from the
property, and, at. the time of the hearings, the Appellants were
taking steps to remove the 1971 Cadillac,
1B, On December 1, 1996, the Zoning Officer visited the
Appellants' property to investigclte a report that construction
was Occurring without a buildinC) permIt.
19. During his visil: on December 4, 1996, the Zoning Officer
,
,
\l,
observed numerous lInlicensed vehicle!) stored outside of any
struc~.ur" on ^ppr!llants' property,
20, On [)0cember 6, 199(" l:he Zoning OfUcer spoke to
Appellant Joseph TJresk.i by telephone and advised him that storage
of unlleenB,.,r1, ,inopf":nb.1e or junked motor veh:l.c.1es outside of a
,
I
Exhibit A- page 3
r
While Pennsylvania law is fairly lenient in defining the
facts which establiah a nonconforming use/ the burden of
establishing those facts still falls on the land owner. Little
~ zonin9-~inq Boar~AbbinQton Township, 24 Pa. Cmwlth.
490, 367 A.2d 266 (1976).
.
There ia no question of fact that the Appellant had a number
of unlicensed, inoperable or junked mot.or vehicles or subatantial
remnants tlll.'lreof parked, stored or placed on hilJ property outside
of a comp1et.ely enclosed building or structure on April 1/ 1991
when the Hopewell Township Z,oning ordinance was enacted.
Supervisor Harold Bender teatified that the Townshi.p had no
Ordinance prohibiting this activity prior to April l/ 1991.
Hence it would appear that thE! storage of unlicensed,
inoperable or junked motor vehicles on the Appellants' property
qualifies as a nonconforming use under the ordinance. However/
the extent of the nonconformance is also an issue. From the
testimony elicited (rom Joseph Breski, it appears that six (6)
unlicensed, inoperable or junked motor vehicles were stored on
the property on the date of the enactment of the Zoning
Ordinance, In the years that followed, the number of such
vehicles increased to approximately twent.y (20). One of these
vehicle"" a 1959 Chf'vl.'olst EI Camino, has bef'n removed from the
propert y, and another', it 1966 Ford Mustang convert i ble, is stored
in the gill';lqe on the property, Thia leavell ilpproximately 18
unlicensed, inopl~rahl.e or junked motor vehicles stored ollt,sicle of
hu.lldinqs or SlrllClul'P'S on the property at the present time,
Exhibit II-page 6
#-- ..
.
JOS~PH A BR~SKI AND
NANCY BRESKI
APPELLANTS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
VS.
Hm'EWELL, TOWNSHIP ZONING HE:ARING
BOARD,
APPELLEE
NO. 98-252
C.IVI L
19
WRIT OF CERTIORARI
COMMONWEALTH OF PENNSYLVANIA)
5S.
COUNTY
OF
CUMBERLAND)
TO: HOPEWELL TOWNSHIP ZONING HEARING BOARD
We, being willing for certain reasons, to have certified a certain action
between J OS E PH ~S.K1- ^ N D N M1Cy',JlRE.SK.L,-Al'l'EL.l..Al>l'r S \/S
HOPEWEL L TOWNSH I IC_ZONING HEARJJig BOARD , APPEL LEE
pending before you, clo call1land you that the record of the action aforesaid with
all things concerning said action, shall be certified and sent. to aliI' judges of
our Court of C0ITll10n Pl.eas at Carlisle, within
days of the date hereof,
20
together with this writ: so that we may furt.her cause to be done that which ought
to be done Clccording to the laws and Constitution of this CO!TIJl1Onwealth.
WITNESS, the Honorahle GEORGE E HOFFE R, P..1.
OL\C za:i..(. Cuurt, at Carlisle, Pa. I the
, 19 98
16 day of ,lANUARY
P 433 108 626
US Postal Sorvico
Receipt for Certifiod Mall
No IflSUf;lrlCO (;O'hHdqf' P{lwidll,'1
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HOPEWELL TOWNSHIP ZON
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dlY! N,,~\:),d'J Rd.
Po~l ()tlh~'l, ~;td(n, ,~ )W (;.-,<1"
t'mW.8\.\l'\C1 . PA 17240
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JOSEPH A. BRESKI and
NANCY BRESKI,
Appellants/Respondents
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
HOPEWELL TOWNSHIP ZONING
HEARING BOARD,
Appellee/Petitioner
NO. 98-252 CIVIl, TERM
PETITION FOR RULE TO SHOW CAUSE
AND NOW, comes the Petitioner, Hopewell Township Zoning
Hearing Board, by and through its Solicitor, Michael R. Rundle,
Esquire, and petitions this Honorable Court as follows:
1. The Petitioner is Hopewell Township Zoning Hearing Board
with an address of 257 Newburg Road, Newburg, Pennsylvania,
2, The Respondents are Joseph A. Breski and Nancy Breski,
husband and wife, who reside at 217 Zion Road, Newburg,
Pennsylvania.
3, On or about July 22, 1997, the Respondents, through
their counsel, Richard L, Webber, Jr" Esquire, requested a
ruling from the Petitioner that the storage of unlicensed and/or
junk motor vehicles constituted a valid non-conforming use on
their property situate at 217 Zion Road, Newburg, Pennsylvania.
4. Hearings were held by the Petitioner on said request on
October 15 and November 19, 1997, and on December 17, 1997 the
Petitioner entered its Decision declaring said use of
Respondents' property a valid non-conforming use, but limiting
the number of unJ.i.censed and/or inoperable motor vehicles stored
to a maximum of six (6).
5. On January 16, 1998, the Respondents filed an appeal of
said Decision to the above term and number,
6. Section 11003-A(b) of the Pennsylvania Municipalities
Planning Code (53 p,S. ~1J.03-'A(b)) requires the governing body,
board or agency upon receipt of a writ of certiorari from the
Prothonotary "to certify to the court its entire record in the
7. On April 1, 1991, the Hopewell Township Boarq of
Supervisors enacted the current Zoning Ordinance.
8. On the date the Zoning Ordnance was enacted, the
Appellants had ,six (6) unlIcensed and inoperable motor vehicles
stored on t.he pl:operty, to wIt: a 1959 Chevrolet. El Camino, a
1951 Chevrolet., a 1954 Cadillac, a 1971 Cadillac, and t.wo (2)
1957 Chevrolet.s,
9. In April, 1991, t.he Appellant.s also had numerous
vehicles which were licensed and operational.
10. Section 11.03.C of t.he Zoning Ordinance provides that no
unlicensed, inoperable or junked mot.or vehicle or substantial
remnants t.hereof shall be parked, stored, placed, or allowed to
remain on any lot within any zoning district. for a period in
excess of thirty (30) days outside of a completely enclosed
building or st.ruct.ure.
11. The Appellants propert.y is situate within the A-1
Agricultural Zoning District,
12. Aa vehicles became inoperable, t.he Appellants removed
them from their auto insurance policy and sent the license plat.es
of the vehicles to t.he Department of Transport.at.ion.
13, Vehicles which were licensed and operable in April,
1991, but became unlicensed and/or inoperable following the
enactment of the Zoning Ordinance include the following: a 1968
Pont.iac GTO, a 1975 Chevrolet Impala, a 1956 Chevrolet st.at.ion
wagon, a 1967 Chevrolet. Impala Supersport., a 1968 Chevrolet
Impala convert.ible, a 1977 RMW, a C}lOvrolet dump truck, a 1983
Chevrolet pick up truck, and two 1957 ChevroletB (it should be
noted that these two 1957 Chevrolets are in addition to the two
1957 Chevrolets the Appellants had as inoperable, unlicensed
vehicles prior to the enactment of the Ordinance) ,
14, Since the enactment of the Zoning Ordinance in April,
1991/ the Appellants have acquired additional inoperable and/or
unlicensed vehicles to include a 1966 Ford Mustang convertible, a
1965 Chevrolet Super Sport convertible, and a 1978 Jeep Wagoneer.
15. Only one of the unlic8nsed, inoperable vehicles is
presently stored inside a structure, that being the 1966 Ford
Mustang convertible.
16. The Appellants have removed engines from some vehicles
and stored them under tarps outside of any structure.
17. The 1959 Chevrolet EI Camino has been removed from the
property, and, at the time of the hearings, the Appellants were
taking steps to remove the 1971 Cadillac.
18. On December 4, 1996, the Zoning Officer visited the
Appellants' property to investigate a report that construction
was occurring without a building permit,
19. During his visit on December 4, 1996, the Zoning Officer
observed numerous unlicensed vehicles stored outside of any
structure on Appellants' property,
20, On December 6, 1996, the Zoning Of fleer spoke to
Appellant Joseph Breski by telephone and advised him that storage
of unlicensed, inoperable or junked motor vehicles outside of a
building or structure in excess of thirty days waEI a violation of
the Zoning Ordinance.
21. By folloW up letter (Township Exhibit No.1) the Zoning
Officer mailed the Appellants a copy of the applicable section of
the Zoning ordinance (Appellants' Exhibits Nos. 2 and 3).
22. On June 21, 1997, the Zoning off icer doli vered to
Appellants a notice directing them to remove any unlicensed,
inoperable or junked motor vehicles which had been stored outside
of a structure on their property for ('I period in excess of thirty
days. (Appellants' Exhibit No.1).
23. On July 22, 1997, the Appellants / through their counsel,
made a written request to the Zoning Officer to declare their
storage of unlicensed or inoperable vehicles a nonconforming use
under the Zoning Ordinance. (Appellants' Exhibit No.4).
24. The Zoning officer made a minimal investigation as to
whether the use of the Appellants' property to store unlicensed
or inoperable vehicles predated the enactmeDt of the Zoning
Ordinance.
25. The Zoning Officer has not registered the Appellants'
storage of unlicensed or inoperable vehicles on their property as
a nonconforming use,
26. Photographs of Appellants' property t.aken in December
1996/ June 1997 and september1997 (Township Exhibits 2, 3 <;Ind 4/
respectively) show numerouS motor vehicles in badly deteriorat.ed
states as well as substantial remnants of vehicles stored in the
open.
,..
while Pennsylvania law is fairly lenient in defining the
facts which establish a nonconforming use, the burden of
establishing those facts still falls on the land owner. Little
v. Zoninq Hearinq Board of Abbinqton Township, 24 Pa. Cmwlth,
490, 367 A.2d 266 (1976),
'I'here is no quest.ion of fact. that the Appel'lant had a number
of unlicensed, inoperable or junked motor vehicles or substantial
remnants thereof parked, stored or placed on his property outside
of a completely enclosed building or structure on April 1, 1991
when the Hopewell Township Zoning Ordinance was enacted.
Supervisor Harold Bender testified that. the Township had no
Ordinance prohibiting this activity prior to April 1, 1991.
Hence it would appear that the storage of unlicensed,
inoperable or junked motor vehicles on the Appellants' property
qualifies as a nonconforming use under the ordinance. However,
the extent of t.he nonconformance is also an issue. From the
testimony elicited from Joseph Breski, it appears that six (6)
unlicensed, inoperable or junked motor vehicles were stored on
the property on the date of the enactment of t.he Zoning
Ordinance. In the years that followed, the number' of such
vehicles increased to approximately twenty (20). One of these
vehicles, a 1959 Chevrolet El Camino, haD been removed from the
property, and another, a 1966 Ford Mustang convertible, is stored
in t.he garaej8 on the properl:,y. This leaveD approximately 18
unlicensed, InoperablD or junked motor vehicles stored outside of
buildings or st.ructures on t.he property at. the present time.
(11111'111 1III 1111'_'1"\"1'11 '1'()wl1nhJp, alleges that the
AI'I' I 1"illllll/l\I'I",1 Idlilll IIU! :111 violation of Article
I I ,(J I (I') I" I, Ill' ""I'''wr, L.1 'l'owlI[lld,p Zoning Ordinance for
111"1111'111'11 IIIIII""qln"d, IlIoper'iltive, or junk motor
vnlll,'II'n illld 1'/11111 1111 tlirdr property.
'I,
/I. )IIVIIUd 1!:IIt:r.)lr.!t;lIllrm!.-N.QL:Lc~
1~e Enforcement
/01,1\ I,'" ('llnd [dulI/I' d"r,n lIot comply with the requirements
(II' 1110 ~ll1l1lf'II)t\llIlefl Planning Code of the Hopewell
'l'OWllrll\ll' ~f111111f1 IIJ:dIIlClI1CP for the following reasons:
( I) II I'll i I rI "0 sti'lte facts sufficient to
rlf"f1I'11 hn wilY AppllcillllR/AppelJilnts use is not
II val.l d Ilonconfonning use. The Notice
Lllen~f.ore violi'ltes Sections 10616,1 (e) (3) of
the Code alld SAction 13.01(C) (3) of the
OnllllEtlIce.
(2) It falls to stal:", the Ume period in which
the Applicants/Appellanls may appeal the
Zoning Of f. ieer' s determ:lnCl t10n to the Zoning
Hearing Board and therefore does not fulfill
the l'f'lquirements of Sectioll 10616.1 (c) (5) of
the Code and Section 13.01 (C) (6) of the
Ordini'lnce; i'lnd
(3) It falls to "clearly describe" the
poLent:Li'll sanct:Lol1s resulting from failure to
eornply wIth the Nol:ice i'lnd therefore does not
f.ulfill the requirements of SectIons
lOGI6.1(C) (6) of the Code and 13.01(C) (7) of
the Onlinance,
12L__f..ctLLJ.!.kJL_t_Q""c.e.1'Jir;y_"tlon.QQn(QrmJn~L!J.fo!.t;) - Appl i cant: 8 /
J\ppellants, through their attorney, sent a letter t.o the
Zoning Off:lcet' dated July 22, 199'/ informing the Zoning
Off.lcer t.hat: the storage of vehicles on Applicants/
Appellants property conld COllfJUtute a valid
nonconforming use, 111 spite of Id s receipt of the
letter, the Zoning Officer took no action and has
continued to refuse t:o register the use as such,
.G..L_F.,gJ,],.l,U:"t;l,,__19-P,,1:.QJ;JJ;jrlY,_iUJiI.Q.l;lQt " em ,June 21, 1997, the
Zoning Officet" inspected the property, Additionally,
sometime between June 21, 1997 and August 6, 1997 the
Zoning Officer and/or ilnother representi'ltive from the
Township inspec!ted the property. Detenninat:lons ~Iere
apparently made that: the use of the property by
Applicants/Appellants was in violation of the Ordinance.
Both inspectIons were invalid for the following reasons:
(a) The Zoning Officer and/or representative
failed t.o notify the Applicants/Appellants
prior to cOl1ctl1r:~l:lng the inspections;
(b) The Zoning Officer and/or l'epresentative
did not display identification prior to
conducting the inspections; and
(c) The latter inspection was not per'for'med in
the presence of Applical1ts/Appellants.
'rhe Zoning Officer 1'I11d/or l'epresentatives
thel'eof violi'ltec1 Section 12.01 of the Zoning
Or'dinance eJll eacil OCCi1r.d.011 ,
WHEREFORE, Applicant.s/Appellallts seek:
(a) i'l determlnatJolI thai', the P;nforeemElnL
Notice 18 invalid;
(b) a deteJ:1l1:1.ni'lU,on tllat tile Zonillg Off:lcer
failed to register tlie use of the property as
val id allel nOIlC()l1 [on1l1I1g;
(e) a determlllatJoll tllat the Zoning OffIcer
and/or Township represelltative fi'liled to
propel"l y lllflpect tllP property; and
(d) dismisf.li'll of the i'lction and proceedings
inIt:l.ated by the ZOlling OfHcer and Township.
8. Concerning the matters raised above, if the Board
rules agi'linst Applicallts/Appellants, then alternatively,
the grounds for their appeal/appJiei'lUon are as [ollows:
a. !:loU:.QQH.t91'IJL:i,!.lSL",US_~_L The use in question is a
vaLid nOIl-c01I1:'01'l1li1l9 use, Tile use in question 1108 been
eont:lnuous sinco prior to the adoption of the Zon:lnq
Ord.i.nance and is t.herefore a valid non-conforming use
entitled to continue .i.n exi8tence and use, The use
r1hould be regIst.ered by the Township i'lS such in
acco1:Clance wi til Section 10,06 of the Zoning Ordinance.
b, NQ_nv:i,Q;ti!-lLQ!L9f._Q!;diIl-<l!lGf'L--12L9yisJ,QmL.. The
provisions of the ZOlling Ordinance whidl the Code
Enfol'cement Offlcer alleqes hi'lve been violated have not
-'
,-
HOPEWELL TOWNSHIP
CUM8ERLAND COUNTY
257 Newburg Road
Newburg, PA 17240
VIA REGULAR AND CERTIFIED MAIL I' 418564470 AND IIANI) DELIVERED
June 2\, 1997
Joseph A. and Nancy L. Breski
2\7 Zion Road
Newburg, PA 17240
Re: 217 Zion Road, Newhurg
T.P. 11-07-0491-021 & 1'.1'. 11..07-0491-036
Df'Alr Mr. Joseph A, and Nnncy L, Breski:
As the owner of record of the nbove referenced property, I am once ngain contncting YOll regarding
the accllll1ulation or inoperable, unlicensed, or junk motor vehicles at this location,
In December I visited your property and could clearly see that ten unlicensed, inoperable, or junk
motor vehicles and parts are parked in the sideyard and backyard of your property, On Decemoer
6, \996. I sent you a leller with copies of the zoning ordinance informing you that the acculllulntion
or these unlicensed, inoperable, or junk motor vehicles is a violation of the Hopewell Township
Zoning Ordinance Article 11,03 C. (Pnge 66 & 67).
On June 21, 1997, I visited your property to verify the information in your zoning application for
the nddition to your dwelling, At this time I could see that at least ten or more complete or parts of
unliccnsed, inopernblc, or junk Illotor vehicles remain located in the sideyard and backyard of your
propcrty, These vehicles nre clearly the same vehicles that I photographed in December 1996. The
keeping of thesc unlic,ensed, inoperative, or junk vehicle on your properly for morc than thirty days
is n violation of the about referenccd Township Zoning Ordinance Article 11,03 C ( a copy this
Article is allachcd). The above referenced vehicle are not enclosed in any structure,
I am making you aware, by mc.lns or this leller, that if these violations are not corrected within
thirty dllYS from reccipt of this notice, the Township will have no other choice than to file a
citation with the District Justice,
You may appeal this Zoning Enforccment Notice to the Hopewell Township Zoning IIcaring Board
by contacling the board' s Secretary Lance Heberlig 24 Shuman Road Newburg or by telephone at
423-5393,
Pleasc address this situation immediately to avoid further action, Any cooperation on your parl will
be greatly appreciated. Should you have any questions you may contact me at my home telephone
number 776-4260, Or you may contact the Hopewell Township Secretary Alverda Ocker at 423-
5570.
Sinct'rely,
~'~:1Il~~
Zoning Officer
cc: Township Filcs, Sally Winder
( JUt? f:
.....
-.;;>
Attachmcnls; Lctter dalcd December 6, 1996, Zoning Ordinance Page 66, 67
F:xhJ.b:l.t "fI"
1I0i\.W (W SIII'VIl\'ISOItS SIAI'i':I'''':NT IN Sli I'POIlT OJ! J!INIlIN(;
llIU:SI(IIN VIOLi\TION (W Till>; 110 P!':'" !':I.I. TOWNSIIII'/,ONIN(;
OllllINi\N(,I>; ANI> NOT EN'IITI.E/l TO 1\
NON,,('ONI<OIt\lIN(; liS!': /l1:SI(;Ni\TION
The ZOllillg 11l':lIillg Iloilld dlo,",' 10 lilld lliat I Ill' 1I01ie'e or appeal was
Iillwly filed The 1l0:lId lIill 110\1' plOtTed 10 addlL'ss llie substalllive issues ol'lhL' alll'gl.d
violatioll nlld rwed 1101 disl1liss these proeeedillgs while addressillg the alleged violatiolls
nlld issucs COllcClllillg 1I01l-COlllilllllillg USl', violalioll (II' llil' wllillg ordillallec Art iclc :\ I.
Sectioll 1103(c) alld llic subslalltivc e'hallellgc 10 llie oldillilllce raiscd by I\ppcllallls Thl'
issuc or 1I01l-colllillmillg use is 1101 propedl' cOllstrued 10 apply to tlie alleged violalioll III
this ~ase, Tlte COIIl'l'pt ur 1I01l-COlllill'lllillg USl'S allll SI",lIules applies to a specific killd or
lalld use or structtllc which existcd UI'OIl Ihl' lalld al Ihe limc thc zollillg ordillalle'e was
adopted hy the 10e'al agelle'Y. Ihl' 1\1\\ Ilsliip ill lliis illslallce I.and use is designated by
vnrious districts wilhinlhe township ~lrllresHs use or his approximatcly 10 aercs as he
tcstified is residential propcrty in the aglie'ullllral disHie'!. II i,; specificnlly a pcrmittcd usc
Under Mticll' IV Section 4 01. thc pllfpOSC ol'lhe agricultule district is Sl't oul to includc
regulations designed 10 hdp prolecl and slabili/.e Ihe characteristics associated with
productive agriculture while allowing li,nill,d residential aClivily, The keepillg of eighteen
(18) ulllieensed, inopel'llble. or junked automobiles is c1carly not the intended residential
use dcserihed ili till' Ordinallce The ()rdillallce prohibits all such vl'hicles Article XI
specifics supplellll'nial I egulaliolls II hkh supplcment the r C'gulatiolls lipl'cifically spellL'd
out/ill' each district alld applil's throughollt Ihl' IlIunil'ipality IIIlleSIi otherwise stated ullder
I
I
I
I
I
l
,~\ ...-
; I '~
,
Article XI. Under Seclion 1103. Ihl're arl' cl'llain things which arc prohihited ill nil
districts 11.03(c) slates Ihal no IIl1lil'l'nsed. illopl'mble or jllnked lIlotor vehicles or
suhstanlial rCn11lallts theleol' IIIIIY lenlilin on allY 101 wilhin allv wning district/ill' a period
in excess ol'thirty (30) days, Thai is, this Il'gullltion applies 10 the nlllllncr in which land is
IIsed l\>r any perlllitted IIse within till' agricllllmal districl Mr Uroski has a rcsidcnlial
,
I,
sillgle I\uuily dwelling pel'lnittcd IIse wilhin Ihe agricllllural district The III11lUlor ill which
I'
hl: l1\ay eXl'leisl' Ihillll>'l' d{ll'S 111>1 illd\ld(' IIIl' st{ll:!!',l' (II Ll',,'pi\lg (lI'\I\llil'l'\lsl'd, \I\(lP"'lilbil'
oljunked nl\llm \'chicks whlc:ll ille 11(11 w\llpil'IL'i\' wilhi\l illI l'nd(lSl'd sllUl'lull' Thi;; is iI
duly enacted lesllieli(lll 011 lalld USl' illdudl'd III Ihl' oldillalll:l' alld applieallle t(l i\11
llil'ski's PI(lPl'IIY Thl' abilil\' (II' Ihl' 1(11\ IIship 1(1 ild(lpl Wllill,\\ (lldill<llll:l'S whieh alll'l'l Ih('
use 01' IlInd wilhin Ihl' lowllship is l'(lIISlitull{lllillalld Pl'lllIilll'd ulldl'l the slall' Slillull'
kllownas the Municipalities I'lalllling ('ode
TIH.' denllilillll 01' iI IIIlIHolIl(JIInillg use undl'lthe oldillillll'e as spl'lkd out
in Section 2,()() is a use which d(les 11(11 l:(ll1\ply wilh Ihe applieahil: use plOyisi(llls ill this
wning onlill~lIee The applil'ahle use plll\'isi(lIlS ulldl'l the agl ieult\lnd distlil't arl' sl'l
out in Article IV, Section ,I 02, delillL'aled I'l"lnilll'd uses Olll' or the pl'lIl1i\led uses is
single Iillllily dwellillgs i\11 III eski's lalld use is a pl:lllliltl'd use TlllIlllalllll'lllll'Ollditi(ll1
in which IIIl' Il'sidenlial use is l'OlldUl'll'd 01 nisls wilh Ihl' storage or parking or
unlicensed, ill"peluble (lr junked \'ehidl's olllhl' pi "l'l'rI,Y is lI(1ta pl'll1\illl'd way 10 ha\'e a
singlc lamily dwelling within the township Thl' (II dinanel' spells (lut Ihal all land usc Inusl
be conducted wilhoUI IIiI\'illg unlil'l'lIsed, in(lpl'l able, j\lnked 11\0101' \,l'hidl's 011 Ihe
propcrly, Juslas tlil' township may Il'i\ulull' sel..bad.s, hcighls, and dimensions to gOYCf/1
the strllctures huilt on the lalld, so, I(H), Ihe 10\\ IIship may dielale IIIlI aL:eul1\ulalion or
inopcl'llhlc, ulllieellsed oljullkl'd vehides si\ling olllhl' lalld
The exisll'lIel' or MI Illeski's properly use ill the til1\e or IIdoptioll (II' IhL'
Zoning Onlill~nee, April II)(J I, was disl'lIssl'd al IIll' 1,(llIillg lIearing Il(luld hl'ul illg i\ II
Brcski's land usc us it exisled wlll'lI the (lldillillll'l' IVilS aLl(lpted was dearly a lesidelllial
use, fYII' IIleski tcstified 10lhat use alld MI Dunllel iLknlilkd the properly liS hl'ing Within
Ihe ugliculturul dislliel ullll hl,inl\ lisled (In IIIl' buildillg I'l'lInil and wning applieution as
residcntiul To dcsignlllc the vehicles liS a nOIHollllllllling use, the I,oning Ilearing 1I01lnl
must he able 10 c1eurly und specilieullv illL:lltil'y whal Ihl' 1I(\II-l'Olllllllllillg use is which i\lr
2
lI'eski sl'eks 10 lIi1ve li!,ll'd illld idelllilkd hI' I Ill' 'I "11'lIsllil' ilS 1111 l'xislill!, 1I0lll'0llltlllllillg
Lise (III I Ill' dilll' IlIe Olflillillli'l' \IW, illlol'll'd (kilill', ~II IIleski lI'ilS 1I11i1/dl' 10 slIggesl "I
Iilbl'lllle lISl' IIIIit'1I Ill' l'Iili'Il'i IS '"I f'si"lill!( 11"'H'''lIltllllllllg lISl' olllel tllilll slolilge oJ'
I'l'llil'll's Ill' silid Ill' did IH" 1I'i1111 iI jlllll.Villd liel'lIsl' I k Silid Ill' did 111>1 \\'iI II I 10 bl'
ICI!oglli/,l'd HS n sl"lilge lilvilill' I k ,"aid Ill' lIilllled I" 1Ii11'l' l'l'lIi1ill 1I11Iiel'II,'il'd illIll
illoperallle vl'lIil'k!, "II IIi!, 1""1'l'1I1 /\11 oJ' I Ill' I""IIIIIU".\' llil" bl'l'lI illll'IIII.S "J' kCl'pillg 11Il'
vehicles Oil Ihl' I'lOl'l'lly, lI"ill!, Ihcll1 Jill hubbv 1'11I1'0Sl'!, 111l'ski lIIi1illlilillS (1Ii11 thc
propcrly is Plilllalilv illCsidl'lIlinlllse 1J'~lr Ih,",ki's 11I01'l'IIV is illlexistillg lesidclICC, il is
n pCllIlitted lISC Hlld shollld 1101 I'l' gilL'1I 1I01H'01l1l1l1l1illg lISC stHllIS Iheski's 1I0IiL,." oJ'
nppeal lists the p/'(lpelly as H sillgle lillllilv Il'sidellliill lISl' ill l'ilragilll'lI ) oJ' IlIe nppeill
dOl!lIl1Wllt IJ' Mr 111l'sl.i's plol'ellv Lt.Sl' is '',;IOlil)'.l' lill'illll''', thl'lI IllS Il'sidellliillllse or the
propClly is sewlldillY 10 IlIe kl'l'I,illg or vdlidl's 11111 ~ II IIleski leslilied Ihill lIis lIse is
Icsidcllliilllllld Ihal 1Ii.\ l'IlI" illl' IIi!, 1I0bbv Illld IlIill 11 is lIis illlclllioll IlIllt lIis ellildlCII will
relllove Ihe CIlIS lir.>11I IlIc prOpl'l'll' i\ 1I01lhv is ddilled IlS a Iill'lIrile Ol!llllpiltillll plllSlICd
Jill' alllLlSellll'l1I IIres!;i leslilil'd IlIillllIl' li'L11 \'L'lIicks Ill' oligillilllv /'roLlght tolhe Il/opellv
\\'ele paYlllellt lill jobs wlw/L! lIis bLlsilless ellslolIll'!!' \Vl'IL' IIlIilble 10 1'11.1' cash They wele
bLlSillcss Ilssels - 1101 iI hobby or 1lIlIlISL'lIll'lIl The olhcl CillS siUillg Oil the propelly
presellliy bellil1l1e illOPl'lllblc illld 11l1lIl'l'lIscd illler 1'1111 Till' vehiclcs IIlcski is leslmillg
IIle lilrped i1l1d illlhc dlivcwilY 01 111C ill the glllilgC Till! othels Ille diseHrded They hllve
1101 bcell wOll.lll oil TIIl'y lal'k CI'!',ilil,', :',HI:, Iillil \'llli"lIs olh<.ll' Ihillgs IIl'I'CSS:lI)' 10
'kellsc 01' 1'II111helll Thel' wOllld lak\' thollsilllds or dollars 1\1 fix which, as Ill'eski testilied
with Il'Spel!1 10 Ihe 1l~1\V, he is 1I11willillg 1\1 spelld Th\'l'l'IiIlL\ 1\ll'iai1l1thnl his lIse or Ihl'
property is 1I1l11l'iy 1111 activ!.' h\lb"y which \lcclIl'ics HI/ or his spal'e li1l1e wOl'killg \III 1701
I R vehieles is a sha1l1 1\11' llil\sl,i IlIilV 1"IISlIC his h\lhhy, bill he 1I111st do il ilS a hohby The
very I III I lIIl' \11'11 hobhl' IlIilkcs il illl illcidclllill illld SI'L'olldal v plllsllil Discilrdillg vehick's
i1l1d plIl'killg thl'1I1 Oil )'\l1I1 propll/ly iiiI' ,\'l'illS Wilh\lIlICVl'lwo,killg 01llhe1l1 docs lIolll'"
wilhilllhe l'ustolllill)' 1I11lk'I':,tlllHlillg Ol'plllslIillg iI h\lhl>\ Thl'l'dill'e, thc issue is relllly III1L'
.I