Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Home
My WebLink
About
95-02796
~~~~~ ii M THE COMMONWEALTIi COURT OF PENNSYLVANIA CAFFREY AUTO SUPPLY, INC. mtd KENNETH F, CAFFREY, JR, v. HAMPDEN TOWNSHIP and HAMPDEN TOWNSHIP ZONING IiEARMG BOARD HAMPDEN TOWNSHIP, Appellant No. 1003 C.D. 1996 Argued; December 9,1997 BEFORE; HONORABLE DAN PELLEGRINI, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JESS S. JIULIANTE, Senior Judge 9PMION NOT REPORTFh MEMORANDUM OPINION BY JUDGE FRIEDMAN FILED: March ~, 1998 Hampden Township (Township) appeals from an order of the Couti of Common Pleas of Cumberland County (trial court) reversing the decision of the I'ownshtp's Zoning Hearing U'oar•o (fib j which upheld the 'i ownsUip ~oniug Officer's cease and desist order. We aflinn, In April of 1987, the Township granted Kenneth F. Caffrey, Jr.'s (Caffrey) application for a Certificate of Use pursuant to section 2109 of the Township Zoning Ordinances to use a lot located at 110 S. Sporting Hill Road in ~ Section 2109(1) of the Township ?.Doing Ordinance states: (Footnote continued on next page...) Mechanicsburg for the "sale, storage wtd distribution of auto parts and body shop supplies. Would have retail sales from counter, wholesale pick-up and delivery." (R.R. at 85a.) At the time of the grunt, the subject properly wns zoned Commercial-General (C-G), which included rho retail and wholesale sale of motor vehicles and/or mobile homes as a permitted use. (R.R. at Ba-9a; O.R., llantpden Township Zoning Ordinance, ~ 1203(17).) In Jwmary of 1992, CalTrey began to use rho property for the retail sale of automobiles, and, in August of That same year, he discontinued the retail sales and began selling automobiles wholesale. (R.lt. at 17a•ISa.) Although CafTrey obtained rho requisite stale agency perntits In engngo in such sales, he did not apply for a Certificate of Use from rho 'Township because ho believed that the automobile sales were a "confor-ning use" that did not require additional Township approval= (R.R. at 18a.) In December of 1993, the Township 7.oning Ordinance (Continus,d item prwioue pap®..) A Cerii(Icate of Use shell be a written statcmem by thelonhtg Oiliest seeing forth either that a building, structure or parcel of lend complies wish the provisions of Ihla Chapter, or That a building or structure Iswlblly may be employed for speci0ed uses under the provisions of this Chapter, or both = Ca(Trey was corcect in his auenfon That eutamobile roles were permitted in a G O zoning district; neverthelen, because Caffrey changed Oum the ale of auto puts to the ale of automobllee, he {j~jQ have applied far a Ceni~cete of Use pursuant to segion 210r)(4) of the Township Zoning Ordinance, which provides: A Ceniflcate of Use for...a chuige in the use of the land, or fur a change is (sic) the use of an existing building, shall be applied fir and issued befirre any such lend shall be occupied or used, or such land or building changed in use, and shall be iesued...provided ouch proposed use is in conformity wflh the pmviuuns of this Chapter. was amended to delete the GG zone classification, replacing it with o Commercial-limited (C-L) zone in which the sale of motor vehicles, retail or wltolcsale, was prohibited. (Trial court op. at 2-3.) After the amendment, the Township Zoning Officer issued a violation notice to CafTrey for engaging in tltc retail and wholesale sale of automobiles without a Certificate of Use, (R.R. at 87a); the notice was followed by a cease and desist order directing the termination of the sales. (Trial court op. at 3; R.R. al 88a.) CafTrcy appealed from the cease and desist order to the ZHB, and, alternatively, sought a Certificate of Use for the sale of motor vehicles. (R.R. at 90a.) The ZHB dismissed the appeal and denied CafTrey's Certificate of Use application. (R.R. at 99aJ CafTrey appealed the ZHB determination to the trial court and, while the appeal was pending, once again sought a Certificate of Use from the Township to conduct automobile sales on the premises. (R.R, at 262a.) When the Zoning Officer denied this second application, CafTrey appealed the denial to the ZHB, which affirmed the deternination of the Zoning Officer. (R.R. al 267a, 148x.) CetTrey filed an appeal from the second ZHB decision to the trial court, a»d the trial court consolidated both appeals for review, (R.R. at 173a.) The trial court concluded that Caft'rey's automobile sales were a legal non-conforming use of the property and, thus, reversed the ZHB's decision to sustain the Zoning Officer's cease and desist order and concluded that CafT'rey's application for the Certificate of Use was moot. (Trial court op. at 12.) ~ Uecause section 2109(4) of the Township Zoning Ordinance only requires a certi0ceto of use when the proposed use ~11Cumtf to Iho provisions of the Township Zoning Ordinance, the trial court found that Calyrey's application for a Certi(Icate of Use was moot due to its delerminatlon that the sale of automobiles became a lewfirl non-conforminn use as of the (Pootnot• oontinuitd on nsrxt papo,..) 3 The Township now appeals from the trial court's decision to this court ~ arguing that, because Caffrey did not apply for or obtain a Certificate of Use to conduct vehicle sales while rite C-G zoning district, permitting such sales, was in effect, Call'rey's sale of automobiles was not afT'orded protection to continue as a lawful non-conforming use upon the amendment of the Township Zoning Ordinance. We disagree, finding guidance from our decision in McGeehan v Zoning He ring Hoard of Sprinefield To. ~ ~i l~n, 407 A.2d 56 (Pa. Cmwlth. 1979),' In McGeehan, a landowner operated a junkyard for ten years prior to the enactment of a 1971 zoning ordinance prohibiting the eslablisltment of junkyards in the zoning district in wlticlt the subject property was located. The property was listed as anon-conforming junkyard use. When the landowners subsequently sought, and were ultimately 6nanted, permission to expand their olTice located on the premises, the adjacent property owners appealed. The objectors contended that the junkyard was not a valid non-conforming use because (Continued fr~.m prravioud page...) date of the enactment of the December 1993 amendment to the Township Zoning Ordinance replacing the C-G zoning classification with the C-L district. (Trial court op. at 1 I-12.) ~ When the trial court takes no additional evidence, our scope of review ie limited to determining whether the T.lin made en error of law or abused its discretion, end whether the ZHB's decision is supported by substantial evidence. Kern v Zonin Tredyffrin TD4Y.n9hig, 449 A.2d 781 (Pa. Cmwlth. 1982). g-liearinn Qoard of ' We recognize that McGeehan dealt with the request of a landowner to expand property listed as a nonconforming use; however, our decision In that case Is relevant to our inquiry here because in M~~a we held tha-, in order for landowners Io expand their use of lend, they had to establlah that the use of the land lawftrlly existed prior to Ilse enactment of a zoning ordinance prohibiting such a use. 4 it was not lawfully in existence prior to the enachnent of the township zoning ordinance prohibiting junkyards in the distract, basing their argument on the fact that the junkyard owners failed to obtain a license for the junkyard under a township ordinance Thal pre-dated the 1971 zoning ordinance, However, we determined that the junkyard could continue operation as a lawful non-conforming use, stating that the lapse in proper licensing was not diapositive of the use's status so long as the use of the premises did not run afoul of a zonine restriction, ~ Because the junkyard was a lawful land use that pre-dated the zoning classification prohibiting that use, we determined that it was a valid non-conforming use. A similar situation exists here. While CalTrey should have applied for a Certificate of Use under section 2109(4) of the Township Zoning Ordinance when he began using his property for the sale of automobiles, the fact that he failed to do so did not cause him to run afoul of any zoning s r' io .6 There is no question that CalTrey's use of the land to sell automobiles complied with the Township Zoning Ordinance that 6 We are cognizant of the fact that section 2109(4) of the Township Zoning Ordinance is a yQlllntZ provision, unlike the licensing ordinance in J~ggJ)~; nevertheless, it is still not a zoning restriction. Section 2109(4) did not restrict Ca11Yey from selling automobiles in the then existent C-O zoning district; rather, it is merely an administrative record keeping provision designed to keep an account of changes in land use. In fact, section 2109(4) is found in the part of the Township Zoning Ordinance entitled "Enforcement and Administration." Where the changed use conformed to the Township Zoning Ordinance, issuance of s new Certificate, of Use was automatic upon application. Indeed, after the second hearing before the ZIiB, the ZfiD specifically stated in Its decision that "[iJf [CalTrey] had applied for a permit in 1992, a permit would have been issued and his continued use of the premises after the December 7, 1993 amendment could have been registered as a IawfLl nonconforming use." (R.R. at 153a.) ©ased on this statement, it Is apparent that the Township has not sufi'ered any prejudice as a result of the trial court's determination. 5 u pre-dated the December 1993 amendment prohibiting such a use. 77terefore, despite Cetl'rcy's failure to obtain a Ccriificate of Use to engage in automobile sates whilo such sates were permitted, the trial court properly concluded that the automobile sales were entitled to Inwful non-conforming use status. ~ggj~. Accordingly, we affirm.' ~,~~ ~.~ ROCNELLE S. I~ItIRDMAN, Judge ~ The Tnwnshlp nukes edditinnel ugumenu in suppport of iU position; however, boceuse these srgumenu du not impact nur dmerminsUon Ihst Cs(trey's eulamoblle ulm were properly efT'orded IswtGl nan•confonnin~ use sutus, we need not address these alternate cnntcndons t. IN THE COMMONWEALTIi COURT OF PENNSYLVANIA CAFFREY AUTO SUPPLY, INC. and KENNETH F. CAFFREY, JR. v. No. 1003 C.D. 1996 IiAMPDEN TOWNSHIP and HAMPDEN TOWNSHIP ZOIJIIJG HEARING BOARD HAMPDEN TOWNSHIP, Appellant ORDER AND NOW, this ~ to day of Mareh , 1998, the order of the Court of Cuu~mon Pleas of Cumberland County, at Nos. 95-2796 and 95-7280, CERTIFIEDjFRO~II~TNk H~t;~R~f hereby affirmed. AND ORDER EXIT MAR 9 - 1998 ROCHELLE S, FRI DMAN, Judge C'rt ~-. Oeputy Prothonotary • Chlef Clerk <'lilt'I'iI'il'A'I'i{ ANI> 'I'ItANiiMI'I"I'AI, OF It1iCOItH I1NI)lilt I'I:NN!iYLVANIA ltlll.li (71' AI'I'IihLA'1'h I'ItOC141lI1RE 1931 (c) 'I'a Ilur I'rolbonutary ul the Appellalr' Court to which the within matter hdr, been appealed: COMMONWEA1,Ttl CO(IRT OF PENNHYLVANIA THE l1NUh:I+tiIGNI'.U, I'rulhonot;rrY of the Court of Common Pleas ul CUMD~RLANU County, the said court being a court of record, dv hereby certify that annexed hereto is a true and correct ropy of the whole and entire record, including an opinion of the court as required by I'A It.A.I>. 1975, the original papers and e7!hibiCs, ff any on file, the transcript. of the proceedings, if any, and the ~' dockeC enCries in the following matter; r~. -'Case Nos. 95-279G and 95-7200 Civil Tetml No. 1003 C. D. 1996 i u ['. ~~~ ` r .~ '• ! CAFFREY A11T0 fil1PPLY, INC. ~ro ~ i-I~ ^' AND KENNETII F'. CAFFREY, JR. ,?~ x~" ~, ~, v ,1 L. it t '-`- Vfi. t~~ r „~. `` `' HAMIrDEN TOWNBIII P ANU HAMPDEN s = ~t TOWNfiH11' IONINO IIF.ANIN(i DOARD '' .,,r~ The documents comprising t:he record have br~~y' nr Iber-ed from Nu. 1 Co No. _q9,y _ and attached hereto as L•cxhi~t A is a list of Che documents correspondingly numbered and identified with reasonable definil.eness, including wiCh respecC to each docwnenC, the number of pages comprising Lhe document. 1'he dale on which the rer.ord has been transrniCC(:d to the appellate court i^ ___- Mny_-3], 199G \ _.l , ( Seal. of Court) ~.._~.r, ~p l r r , -- Prothonotary An additional copy of this rertffilCgtel~dd'~pgp~~fi~r~, Please sign and date copy, thereby acknowledying receipt of this record. It1iCQI1N RIiC1i1VF.U7 Nate: ~:. (nignalure 6 1ttlel CI•:R'i'II'1(:A'I'li ANU '1'ItANSMI'1"I'A1. (ll' It1iCURU l1NUhat I'IiNN!;YI,VAN 1 A Itlll.l: (>I' AI'1'IiI.1.A'1'li 1'I20(:I:Ullltli 19:i I (r: ! 'I'o the I'rulhunolory nl the. Appellate Court to which Lhe within matter h.rn been .rpl,enled: COMMONWEA1,Tll COl1R'I' Oh' PF.NNSYhVANIA Tlll. IJNUliIt5lGNli11, I'ruthnnoLary of Lhe Court of Common fleas of __CUMRERLANU__ County, the said court being a court of record, do hereby certify that annexed hereto is a Crue and correct copy oC the whole and entire record, including an opinion of the courC as required by PA It, A. P. 1925, the original papers and exhibits, if any on file, Lhe transcript oC the proceedings, if any, and Lhe docket enCries in the following matter: Cess Nos. 95-279G and 95-7280 Civil Tormr No. 1003 C. D. 1996 CAFFREY A11T0 SUPPLY, INC. AND KENNETH h. CAFFREY, JR. VS. IIAMI'DEN TOMNSIIII' ANU IIAMPUEN 7'OiiNSIIII' 'CONING IIEARIN(i HOARp The documents comprising Che record have been numbered from No. 1 to No. _q 95 _ , and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable de[initeness, including with respect to each document, the number of pages comprising Che document. The dale on which Lhe record has been CransmiCted to the appellate court is ___ _ May_31, 199G __ ~ - (Seal oC Cour.t) \ „~{~ P~ Prothonotary An additional copy of this csrliCicale is enclosed. Please sign and dale copy, thereby acknowledging receipC of this record. Itl>COItD I(BCIi1VIiU: Ualr!: lulgnnluru 6 Illly) ('anunuawtuhh al I'cnnn)dvanix ~ nn. ('aunty ul <'undrerlanJ I, Lnwn~nrr 1:, Welker , I'nuhanntury al the ('curl al l'anunan I'Itxs m and fur nxid ('aunty, Ju hereby CC1111 )' IIINt IIIC lUllglllag IA a lull. true nnJ car rcrl copy ul the whalr rccorJ of Ihc cane then•in ntatrA. wherein Ca II~Y_ASilt? '> t ~ lY~_ lu~'.,_.llIM1.___ Kcruta),i11'...(:iltfCi'Y...rlY.. ________u.._~_ I'Ixintilf. xnd __jlg)gxfen_'('oggL111?__r~___ HanLen frtwnnh~t lnniny_Ilea~~n_~____ lk~a tit _- DclcnJant ~., nn thi name rrmatm of renxJ Csse No. 1003 C. D. 1996 hclarc the nail ('hurl al No ?G-279~~10 of ---Ciyll___-- __... Icntt. ~ D 19____. In 'Thti'fIMONY WIIhkI?Oh, I hove hrn•uma ntl my hand and alhnrJ the oral al ralJ ('Dart This Thirty-first __-- du'/((~y/'~~`~"~~~_~~-.J~~'++M ~ ~. ).. IY ~. ~~~~~~C '~ 1'rathnnourl ti. 1, NdLU1.(1..L'u_S1~El.Y____..__ i'rrnidenl.ludgcallhc __._f1111Lh ____ Judicial District, campasrd of Ihc ('ounly of ('umhcrlxnJ, Jo cerlily Ihel .le~W~i'lll:@_l'.',_YiCll(0L._ Pm hon ~ ary ~__._,_., by whom the anncaeJ recorJ, ccrtilicalt and attcrtatinn werr made unJ given, and who, in his awn proper handwriting. Ihrreuma suhncribed hie name anJ effixcJ the seal of the Court of ('ommm~ I'Ican of raid Cuumy, war, al Iht lime of na doing, and now it Prothonotary in anJ for nail ('aunty of ._______Su(drsln(ni_-.___ __. _______Y___ in Ihc Conunonwrahh of I'ennsylvanla, JulycommissloneJ end yualil'ied to all of whane acts an such full laith and credit arc xnd ought to be given es well in Cuurlr of judlceture en elsew here, anJ that the nail record, cerhficale unJ unestalian art in due loon of law and n rd by the proper ulliccr. / ~ Ihr~Wenl I ~ . Qtnunonwculth of I'cnnsylvunia ('aunty of CumhcrlnnJ ns: I, I,awrBnce_E. Welker__. -..__-. Ihulhonulur>> al the ('curt al l'annnon I'lea- hr unJ for Ihc said ('Dual). do rtuily that the Ilonuurhlt Ilanild I , tila~ra]y __ _ _ by whom the foregoing auenlalinn wan malt, nnJ who has Ihcreuntu subsrnhed hin name, wan, at the Iirnt of making Ihcrcul, unJ still in I'rcnidcrn.hulgc al IhcCauu ul ('ununan I'Iexn. (hphan' 1'aurt and ('oml al Quarter ticnsions of Iht I'cace in and Ibr raid ('aunty, duly ('onunisniunrJ and yunhlitJ; hr all whose acU ns such lull litilh nnJ credit ale xnd aught to ht given, ati well ut ('Darla ul puhcxhnc xn elnewhert IN 1IalIMON1' 1VIIfR1O1, I hnnv hrvruma ul my hn ul xlfined Ihc seal of said l'aurl Ihts '-- -`J ~~ l .... pimhunnLU~ .~ A u MI S N M A n I~ ~ .~ .~ . W ., ~ ~ u o~D N W n ~°+ n ~o NI 1 O ~+ X ~i ., w Qa W w 4x7 e LL B k F Amung the kccurds turd Ihncceding+ cnndlnl in the court of ('ununon I'lens iu and Inr the count ut _ Cumbarl a_nrl _ __ ~ ) Case No. 1003 C, U 199G - in the ('Urn elltllw'l'AIHI nt l UIII!)'IkU n1U lu Nus .,__2S1.c~7?.4__Iti._9~-719-9 _.~~Y~,1.'lcnn. 14 --.-- i~ cunruincd nc~ lollowing: , ('OI'Y OP ~__-------_---Appenronca Coffray Auto 6upply, lnc. and Kenneth P. Caffrey, Jr. vs. Ilampden Twp, and Ilampden Twp. Zoning Hearing Hoard PACE ND. case No. 96-2796 civil Term ' 1 - 24 Nay 23, 1995, Land Use Appeal I'ursuar.t l0 53 P,S, 511001-A et. seq. Appeal the Hearing [loath Ikcision of May 5, 1995, No. 95-02, filed, 25 Nay 23, 1995, Writ o[ Certiorari, issued. 26 - 34 May 23, 26, 1996, Appellants' 1'etilaon for Stay of I:nforcernenC of Decision ttre Hamlxlen Township 7.oning Hearing board Orcler of May 5, 1995, and 0[tler, filed. AND NCkI, this 2GUt day of May, 1995, in consideration of tha within petition, a kale is issued ulx~n the appellees to arrow cause wiry appellants' petition for stay of enforcartenC of the decislon and order of the Ilzntlxlen Tcnvnship 'Coning Hearing Ibard ni' May Vii, 1.995, ought not be granted. This R returnable twenty (20) days after service. In the meantime, enforr_anent Co stay. Hy tha CourC, Kevin A. Ilene, J. 35 - 37 Jtare .U, 1995, Praecipe to Enter Appearance acrd Intervene on Behalf of Ht3rtpden Towrtehip, filed. TI)e urxlerslgned hereby appear for IIAMPD[7J 7l7WNS1IIP and, ae counsel f~ sold Township, hereby intervene therein as en appellee. DYr kicttatd C. 6nelbaker, Eaq. 35 - 45 J(o)e 14, 1995, Answer of Il.vrrpden Township to Appellants' Petition for Stay c Enforcement of Decision of the Ha!rrpden 7bwnship Zoning Hearing Hoard Drder c May 5, ].995, and Rule to Show Cause Dated May 26, 1995, filed, 46 - 49 Jura 22, 1995, Appellants' Reply to New Matter of Ilarnlxlen Township, filed. 50 - 51 June 22, 1996, Verification, filed. 52 - 154 Aug, 18, 1995, Ilantpden 'Township Reconl, filed. 155 Nov, 2, 1995, Praecipe t2rr I,feting Case for Ardwrtent, filed. 156 - 162 Noy, U, 20, 1995, Motion to Strike Land llse Appeal fnxn Arclwttent Court, aril Ortier, 1'11ed. AND NDW, this 20th day of Novend!er, 199~i, a nrle is issued on the al>[tnllees to etxxa cause why tlx± relief reclltested in the within nntion ouyht not Ixr grantr'ct. '1'h1n nrle retunahle raevan (7) days after service. Hy Lhe Cuurl, Kevin A. Hess, ,1. IG3 - I70 Nov, 27, 19'lfi, Answer of Aplx!llee Ilrunlxlen'Powrushlp to Aplx~ilnnis' Nktlion In strfkc I,-trxl Iiso Appeal Intl Argunx~nl. Cr!ur( arxi Rule to tihcnv Cause Issued Ncrvcrnher 211, 199'i, fllcrt. 179 Nov, 20, 199~i, thtler , t i lrvi. In Re: FMtI ion lu `tl Tike Aplxvtl f rnn Aegtmx!nt Cou r I AND Ncr<i, thin 7Hth dny of Nnvcmitx!r, 19')'i, the within not iun lu ntrfke alrysal Ihm ;ngturxatt r•~nnt ir, Ul:Nll?U wllhrntl prcjulire In tttc aplx!Ilnntu to hrlcl aril arqua, in rnnnc~c•i icm with the aryrtnx!nl r•nnrl uclxxtulcvi fcu I>trnnl^-v '~, 199'i, Ihcir rorlucrl Ih~rl the dertulrnt luvrin Ix' delericKl until .,.'sllg>~~lte ricki~•~,11_Ll_ L~~r'_ II,tn1tlr tl I,iwgl',I11~?_ %r~lli[1~_Ili~~~~1~_I4~,t~1 with rt;ix~ct lu il~; Ix~~n In~l lu•Id hh,~~,~ndx~r I, I'!'~'~, ~~--=- Pncr•. No. loo - lay 106 - 194 195 - l9H 1.99 - 200 201 - 202 203 - 215 216 - 219 220 - 224 I]ec. 1, 1995, Apl7cllanls' Reply In New Matter Containcsl in Ilrtogxlcn'I'nwnship' Answrrr to Nk7lion to htrike Innd Usc Apix7al Iran Ary7urxntt Court, film. Jan. 11, 199G, Answrr of Ilan-xien '1'uwru;hip to Apl7cll~uttr,' Petlt iun for Stay n finforccrtx~nl of her•islon of the Ilrunl><len '1'nwttrthlp %aninq IIe~ning 117ati1 On1er o [kacanl7er G, 1995 nrxl Rulr_ to slx;w Cause 113tcv1 I7ecevnl7er 28, 199Fi, illcvi. Jan. 24, 1996, Aplx~llants' Reply to New Matter of Ilrvnlxlen '1'owrtship as Con- tained in its Answer to Apl7el lanes' Pet it ion for Stny of P.nforccxsrent, 1'l1ed. .Ian. 24, 1996, Praecilx±, filed, Please attach the encloscrl verification executed by AP17ellant Kenneth I'. Caffrey, .Ir. Lo Apl7ellanls' I'etitiort ft7r Stay of Enforccanent. in the atxwe rrtatler. Ily; Rol7ert 1'. Claraval, Esq. Feb. 2, 1996, order, filal. AND NOW, this 2nd day of i~ebruary, 199G, the petition of Caffrey auto Supply, lac., and Kenneth 1'. Caffrey, Jr., to consolidate No. 95-7280 and No. 95-279G, is GftANI'ED. Ort 95-7280 appellant shall file a brief in cl7amlx!rs within fifteen (1 days of this date, Apltellco s1ti311 f11e a reslnnse brief in dtamt7ere within thirty (JO) days of this date. 'That. case shall l7e decided wltlx~ut oral arg7urtent . The stay issued by the Honorable J. Wesley Oler, Jr., on .lanuary 31, 1996, at No. 95-7280 ie tX1N'I'INUEU. The hearing scheduled by ,lodge Oler for April 18, 199G, is CANCELLED. This judge will. decide the issues raised at both 95-7280 and 95-279G and the stay shall ranain in Cull force until a resolution of those issues. [ly the Court, I~gar B. Ilayley, J. Match 26, 1996, Opinion aril Order of Court, filed. In Rer Larxi Use Appeals AND NCW, Chis 2Gth day of March, 199G, the order of the Hampden Townsl 'Coning Hearing [Ioarcl dated May 5, 1995, which sustained flee cease aril desist order issued by the Hampden Township Zoning Officer on January 17, 1995, IS REVERSED. Hy the Court, Cdgar D. Ilayley, .1, April 18, 1996, Notice of Ap17ea1, f11ed. Notice is Hereby given that IIAMPDL7J TOWNSHIP, an Appellee in the abovr captioned land use appeal, hereby appeals to Che Canronwealth Court of Pennsylvania fmm the Order entered in this matter on March 2G, 199G. The order was entered in Lx7Ch of Lhe above referenced action/appeals after con- solidation by the Court.. Said Other has l7een entered in the dockets ae evidenced by Ute atGtcitecl copies of docket entries. llys Richard C. Snelt7aker, Esq. Alsll 2G, 1996, Camonwealth Court of Pennsylvania tJotice of'Ik7ckeling Appea: to No. 1003 C. D. 1996, film. Caso No. 9fi-7280 Civil Term 225 - 247 24 EI 1.49 - 251 ^ec. 22, 1995, Inrxi Ilse Aplral I'tusuaut l0 5:f P.S. ti110O1-A et, seq. Apl7eal of tlxr Ilearing Iixtni ILcislon of Ik~canl7er G, 199~i, No. 'lei-(IG, (ilctil. Ilec:. 22, 1995, Writ of Certiorari, issued. hec:. 22, 19951 Jan. 2, 1996, Petitioner's Nk7t ion 1~7r Consolidation of 'I4a7 Larxi llse Aplx~nls, arnl Rule, isr;urvl. AND NUW, Ihis 18th day of Ix~c•crnlx~r, I'195, ,t Rule is Ix~rehy insucxl on Apl7ellees why the I,uxi Its«1 Aplral of the dccesi;nt of the Ilrxnplen '1'owrtnhip %uning Ilearinq 11~7ru71 dated M;ry '1, 19')5, slxnrld nnl Ix' ronsol idalyd with ttxr Laru1 llse Aplrnl nl the Itiv•17;tc7n nt the Il.u;gtirn'I'uwn~;lrlp %aninq Ilenrinq IAnld datrrl 11'c•onix~r b, I't'15, Rule 7,'t urn,dile within lu il~~m ,.I ur'n'ir,~. ---___-_- 11t• Ilu• r out I , I W.-,,;I, y nl~•r , It ., -I------ c:anu Non. 95-2796/7200 (:iv11 'i'erml No. 1003 L'. U. 1996 Page Nr. 254 - 767 Dec. 29, 1995, Aplxlllanlta' I'ef 11 inn for ;lay of G:nforrcxrx!nt of Dec.isinn oC ~ the Ilrtngxicn 'T'ownship '7.oning Ilcarinq 19su~d Unicr of Ik!ccmlx!r 6, 1')9~i, arxl Ot1h!r of Court , 1 i lec1. AND Nc)W, this 21ith day of Ix,canJter, 199`i, elan consideration oC Appel- lants' Petit inn 1'nr Slay of linforcatx!nt of Decision of tlx' Ihvnlxien 'T'ownship %oniny hearing hoard Orcier of Ik!ccartlx!r 6, 199!'i, a Rule in hereby ISSUED upon the Appellee Lo shcri cause why Ute relief requested should not he granted. R111.E R1:9URNAlll.li within 10 days of service. Oy the Court, J. Wesley tiler, Jr., .l. 263 - 271 Jan. 16, 1996, Answer of II,Yttpden Township to Appellants' Petition for Stay of Enforcement of l>ecision of the Ilalnlxlen 'T'ownship Zoning hearing [krard Order of December G, 1995, attd Rule Co Sttow Cause Dated December 28, 1995, filed. 272 - 391 Jan. 18, 1996, Township Record, Cited. 392 - 396 Jan. 22, 1996, Answer of Hatrtpden 9'ownship to Petitioners' Motion for Consoli- dation of Twv Larxi lJse Appeals and Rule to Slxtw Cause Dated Uecentber 28, 1995, filed. 397 - 471 Jan. 22, 1996, 'Transcript of Proceedings of 'toning Hearing hoard, filed. 472 Jen. 31, 1996, Order of Court, fUed. AND NOW, this 31st day of ,January, 199G, upon consideration of Appellants' Petition for Stay of Enforcerttent arxl hk~Hon for Consolidation of Land Use Appeals aril of the Mswers filed in response thereto, n Itraring is SCIIEDUGED for Thursday, April 18, 1996, aC 9t00 a.m., in Courtrcxxn No. 5, Curttberlattd County Courthouse, Carlisle, Pennsylvania. py the CourC, J. Wesley Oler, Jr., J. 473 - 474 Fteb. 2, 1996, Order, filed. AND NOW, Chie 2rx1 day of Febntary, 199G, the pelllion of Caffrey Auto supply, Inc. and Kenneth F. Caffrey, Jr. to consolidate No. 95-72DO and No. 95-2796, is G17ANTED. On 95-7280 aPltellanC sl><311 file a brief in charnbera within fifteen (15) days of this dale. Appellee shall file a reslxtnse brief in chambers within thirty (30) days of Chis date. That rase sl><-tll be decided wittwut oral argument. The stay issued by Hte honorable J. Wesley Oler, Jr. on January 31, 1996, at No. 95-7200 is CON1'INl1ED. The hearing scheduled by ,Judge Oler for April 10, 1996, is CANCELLED. 'Ibis judge will deride the issues raised at lath 95-7280 and 95-2796 arxi Che stay sl><~ll rattain In full force until a resolution of Lhose issues. ^y 1 In! L'ourl , Fdgar U. u~ylcy, .1. 475 - 4117 M,irch 26, 1996, (>[tininn and Omer of Court., filed. In Ices Land Use Aplteale AND NOW, Lhis 26th day of March, 1996, Ute artier of the 11<~rnlden Township 'toning IlcarLtd Iloani dated May Vii, 19'l~i, which suslalned the cease and desist nnicr issuai by the Ihvnlxlen '1'nwatnhlp %oning offfccr on January 17, 1995, I5 RI:VIiRSED. Ily the Churl, P~Ignr H. Ittyley, ,I. 4HR - 49(1 /yn'il 10, 1996, Nctl ice nl AplxvtJ, t 11x1. Notice is Ix!rehy given That IIAMPDC:N 'ICIWN;IIII', nn Aplx!llce in the alxwe c,tpl finned larxi one aplx!al, hereby ,q+lx+,+ln to the Gnnxmvroalth Churl of Prnnsyl- vanln Ittm Ilte Omer enlercrl din Thin holler on March 76, 1')'16. '1'1x! Omer was enlerecl in Ixtth nl the nlxrve refcrenccrt art innn/aplxxtln alter cnnsnlidalinn by the Court. Said Order 1418 Ix!en enlercrl In the d+x•kels ,ut evidenccxl by Ilx! ,tllaclxd coplctt nl +I+x•ket onltleft. Hys Itich,ud c'. `;nelhaker, I(nq. 491 4'I', AprilLG, 1996, Gnlitxtwr~tlllt r'eul I ail I'A Neil I+'e ~+I Itu~ket In+l Algral In 111111 c'.I+. I'1'~ IN THE COMMONWEALTH COURT OF PENNSYLVAMA CAFFREY AUTO SUPPLY, INC. and KENNETH F. CAFFREY, JR. v. HAMPDEN TOWNSHIP and HAMPDEN TOWNSHH' ZONING HEARING BOARD HAMPDEN TOWNSHIP, Appellant No. 1003 C.D. 1996 Argued: December 9,1997 BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JESS S. JIULIANTE, Senior Judge OPMION NOT REPORTED MEMORANDUMOPMION FLED: Mash 4, 199e BY JUDGE FRIEDMAN Hampden Township (Township) appeals from an order of the Court of Common Pleas of Cumberland County (trial court) reversing the decision of the Township's Zoning Hearing Board (ZHB) which upheld the Township Zoning OlGcer's cease and desist order. We atTitm. In April of 1987, the Township granted Kenneth F. Caffrey, Jr.'s (Caffrey) application for a Certificate of Use pursuant to section 2109 of the Township Zoning Ordinance to use a lot located at 110 S. Sporting Bill Road in ~ Section 2109(1) of the Township Zoning Ordinance states: (Footnote continued on next papa...) Mechanicsburg for the "sole, stornge mtd distribution of auto parts and body shop supplies. Would have retail sales from counter, wholesale pick-up and delivery," (R.R. at 85aJ At the time of the grant, the subject property was zoned Commercial-General (C-G), which included the retail and wholesale sale of motor vehicles and/or rmobilc homes as tr pennittcd use. (R.R. at 8a-9a; O.R., Hampden Township 'Coning Ordinance, p 120,(17).) In January of 1992, Call~cy began to use the property for the retail sale of automobiles, and, in August of That same year, he discontinued the retail sales and began selling automobiles wholesale. (R,R. at 17a-IRa.) Although Caffrey obtained the requisite slots agency permits to engage in such sales, he did not apply for a Certificate of Use tram the 'township because he believed that the automobile solos were a "conforming use" That did not require additional Township approval.z (R.R. at Igo.) In [)ecenilrcr of 1993, the Township Zoning Ordinance (Continued from prov~aus pogo ) A Certlflcate of U+e shell he a written statement by the 7.nning Oflicec setting forth either that a building, structure or parcel of land comphe+ wish the provisions of This Chapter, or that a building or structure lawfully may be employed for +peci(ied uses under the provisions of this Chapter, ar both r G11'rey was correct in his assertion that automobile sale were pennittcd in e G t3 zoning district; nevenheteu, because ('a1T'iey changed f}om the sale of auto pans to Iho ,ale of eutomoblles, he ~)d have applied for a ('eni0e+le of Use pursuant to section 21Q9(4) of the Township Zoning Ordinance, which provides A Cortiflcate of flee for _a change in Ibe use ol'the land, ar firr a change i+ (sic) the use of an existing building, shall be applied lirr and issued hclive any such land shall be occupied or used, or such lend ar building changed in use, and +hall be issued provided such proposed use is in conformity with the pravision+ of Ihia Chapter i was amended to delete the C-G zone classification, replacing it with a Commercial-Limited (C-L) zone in which the sale of motor vehicles, retnil or wholesale, was prohibited. (Trial court op. at 2-3.) After the amendment, the Township Zoning Officer issued a violation notice to Caffrey for engaging in tttc retail and wholesale sale of automobiles without a Certificate of Use, (R.R. at 87a); the notice was followed by a cease and desist order directing the termination of the sales. (Trial court op, at 3; R.R. at gge.) Caffrey appealed from the ccase and desist order to the ZHB, and, alternatively, sought a Certificate of Use for the sale of motor vehicles. (R.R. at 90aJ The ZHB dismissed the appeal and denied Cafi'rey's Certificate of Use application. (R.R, at 99a.) Caffrey appealed the ZHB determination to the trial court and, while the appeal was pending, once again sought a Certificate of Use from the Township to conduct automobile sales on the premises. (R.R. at 262a,) When the Zoning Officer denied this second application, Caffrey appealed the denial to the ZHB, which afTirmed the determination of the Zoning Officer. (R.R. at 267a, 148a.) CafTrey filed an appeal from the second ZHB decision to llte trial court, and the trial court consolidated both appeals for review. (R.R, at 173a.) The trial court concluded that Caffrey's automobile sales were a legal non-conforming use of the property and, thus, reversed the ZHB's decision to sustain the Zoning Omcer's cease and desist order and concluded that Ca(Trey's application for the Certificate of Use was ntoot.~ (Trial court op, at 12.) Ilecauae aectlon 2109(4) of the Townahlp Zoning Ordinance only requires e certillcate of use when the propoacd use ~~~ to the provialona of the Township Zoning Ordinance, the trial court found that Calfrey's application far a Certillcate of Uae was moot due to ha detemrlnetlon shat the agile of automobiles became a lew(bl non-conforming use as of the (Footnots+ aontinuod on next papa...) 3 The Township now appeals from the trial court's decision to this court ~ arguing that, because Caffrey did not apply for or obtain a Certificate of Use to conduct vehicle sales wltilc llte C•G zoning district, permitting such sales, was in effect, Caffrey'' sale of automobiles was not afforded protection to continue as a lawful non-conforming use upon the amendment of the Township Zoning C+rdinance. We disagree, finding guidance from our decision in McGeehan v. Zoning Hearing Board of Sprinttfield TownsttiQ, 407 A.2d 56 (Pa. Cmwlth. 1979).' In McGeehan, a landowner operated a junkyard for ten years prior to the enactment of a 1971 zoning ordinance prohibiting the establishment of junkyards in the zoning district in which the subject property was located. The property was listed as anon-conforming junkyard use. When the landowners subsequently sought, and were ultitnalely wanted, permission to expand their office located on the premises, the adjacent property owners appealed. The objectors contended that the junkyard was not a valid non-conforming use because (Continued from previous page...) date of the enactment of the December 1993 amendment to the Township Zoning Ordinance replacing the C-O zoning classification with the C•L district. (Trial court op. at I 1-12.) ~ When the trial court takes no additional evidence, our scope of review is limited to determining whether the ZHB made an error of law or abused its discretion, and whether the ZIiB's decision fa supported by substantial evidence. Kern v. Zoning Hearing Board of Tre (Prin Townslrio, 449 A.2d 781 (Pa. Cmwlth. 1962). s We recognize that McGeehan dealt with the request of a landowner to expand property listed as a nonconforming use; however, our decision in that case is relevant to our inquiry here because in McGeghpa we held that, in order for landowners to expand their uu of land, they had to establish that the use of the lend lawftrlly existed prior to the enactment of a zoning ordinance prohibiting such a use. 4 it was not lawfully in existence prior to the enacUnent of the township zoning ordinance prohibiting junkyards in the district, basing their argument on the fact that the junkyard owners failed to obtain a license for the junkyard under a township ordinance that pre-dated the 1971 zoning ordinance. However, we determined that the junkyard could continue operation as a lawful non-conforming use, stating that the lapse in proper licensing was not dispositive of the use's status so long as the use of the premises did not run afoul of a xonine restriction, ld. Because ttte junkyard was a lawful land use that pre-dated the zoning classification prohibiting that use, we determined that it was a valid non-conforming ttse. A similar situation exists here. While Caffrey should have applied for a Certificate of Use under section 2109(4) of the Township Zoning Ordinance when he began using his property for the sale of automobiles, the fact that Ite failed to do so did not cause him to run afoul of any zoning sic ' .6 Tltere is tto question that Cafl'rey's use of the land to sell automobiles complied with the Townslip Zoning Ordinance that e We are cognizant of the fact that section 2109(4) of the Township Zoning Ordinance is a ~[pa provision, unlike the licensing ordinance in ~Q~~; nevertheless, it is atilt not a zoning restriction. 5edion 2109(4) did not restrict Caffrey from selling automobiles in the then exlatenl C-G zoning district; rather, it Is merely en administrative record keeping provision designed to keep an account of changes in land use. In fact, section 2109(4) is found in the pats of the Township Zoning Ordinance entitled "t?nforcement end Administration." Where the changed use conformed to the Township Zoning Ordinance, issuance of a new Certllicete of Use was automatic upon application. Indeed, attar the second hearing before the ZHB, the ZHB specifically stated In Its decision that "[i)f [Caffrey] had applied for a permit in 1992, a permit would have been issued and his continued use of the premises alter the December 7, 1993 amendment could have been registered as a lawful nonconforming use." (R.R. et 133e.) Based on this statement, it is apparent that the Township has not suffered any prejudice as a result of the trial court's determination. 5 pre-dated the December 1993 amendment prohibiting such a use, Therefore, despite Caffrey's failure to obtain a Certificate of Use to engage in automobile sales while such sales were perntitted, tits trial court properly concluded that the automobile sales were entitled to lawful non-conforming use status. McGeehan, Accordingly, we affirm. ~1tt[ -PD* tf~l~4~ ~1-fix.. ROCHELLE S. PRIEDMAN, Judge ~ The Township makes additional arguments in support of its position; however, because these ergutnentr do not impact our determination that Ca11Yey's automobile sales were properly efl'nrded lewliil non-conforming use status, we need not eddreas these alternate contentions. 6 i IN THE COMMONWEALTH COURT OF PENNSYLVANIA CAFFREY AUTO SUPPLY,INC, and : KENNETH F. CAFFREY, JR. v. No. 1003 C.D. 1996 HAMPDEN TOWNSHIP and HAMPDEN TOWNSHIP ZONING HEARING BOARD HAMPDEN TOWNSHIP, Appellant ORDER AND NOW, this ~ to day of Marcn , 1998, the order of the Court of Common Pleas of Cumberland County, at Nos, 95-2796 and 95-7280, dated Merch 26, 1996, is hereby affirmed. ROCHELLE S. FRI DMAN, Judge REt HAMI'DEN '1'OWN&IIlI' v, CAFF'IiF.Y AUTU et al. lower court No: 95-2796CIv Appealed Uate: March 26, 1996 Cauntyt Cumberland Commonwealth Docket Mt 100J C.U. 1996 IN THE COMMONWEAI,TII coUR'P of PIiNNBYLVANIA CERTIFICATE OF CON'1'EN'PN oF' REMANUEU 12ECORD ANU NO'PICE OF REMAND UNDER PENNSYLVANIA RULES of APPELLATE PROCEUt1ItE 2571 AND 2572(x) THE UNDF.ItS1GNEU, Prothonotary or Deputy prothonotary of the Commonwealth Court of Pennsylvania, the said court being a court of record, dose hereby certify that annexed to the original hereof is the whole and entire record as remanded from the Commonwealth Court, In aompplience with Pennsylvania Rules of Appellate Procedure 2571 and 2572(e). An additional capy of title cxrtificate is enclosed with the original hereof and the clerk or prothonotary of the lowxr court or the head, chairman, depputy or secretary of the government unit is hereby directed to acknowledgx receippt of the remanded record by xxecuting such copy at the place Lndicated and by returning the same IMMEDIATELY. )[ epuCy FrrithonoEary e e PLEASE SIGN AND RETURN IMMEDIA'PELY '1'Ot (Seal oP CoUrk) Record Receivedr s gna ure~~~-"_.__ OFFICE oF' THE C111EF CLERK CoMMONWEAt:'1'H COURT OF PENNSYLVANIA P.O, BOX 11'7]0, sDUT1I OFFICE BUILDING HA{ZRISHURG, PA 1710H (71'i)7H3-)215 OR 7Hl-705H Heaeon far Afflrmxd Remand Date racord Rxmandsd May 9, 199a RE: HAMPUF:N TOWNSHIP v. CAFFREY AU'T'O et al. Lower Caurt No: 95-2796Civ Appoaled Dato: March 26, 1996 County: Cumberland Commonwealth Docket M: 1003 C. D. 1996 IN TtiE COMMONWEAL9'FI COURT OI' PENNSYLVANIA CERTIFICATE OF CON'PENTS OF REMANDED RECURD AND NOTICE OF REMAND UNDER PENNSYLVANIA RULES OF APPELLATE PROCEDURE 2571 ANU 2572(e) TtiE UNDERSIGNED, Prothonotary or Deputy Prothonotary of the Commonwealth Court of Pennsylvania, the said court beang a court of record, dose hereby certify that annexed to the original hereof 1s the whole and entire record as remanded from the Commonwealth court, in compliance with Pennsylvania Rules of Appellate Procedure 2571 and 2572(e). An additional copy of this certificate is enclosed with the onganal hereof and the clerk or prothonotary of the lower court or the head, chairman, deputy or secretary of the government unit is hereby directed to acknowledge receipt of the remanded record by executing such copy at the place indicated and by returning the same IMMEDIATELY. ~~ epu y ro ono •ary e e PLEABE SIGN AND RETURN IMMEDIATELY TO: (Beal Of COUrt) Record Received: OFFICE OP THE CHIEF CLERK COMMONWEAL9'11 COURT OF PENNSYLVANIA P.O. UOX 117]0, SOUTH OFFICE BUILDING {IARRISBURG, PA 17108 (717)76]-7215 OR 753-7058 Reeeon for Remand !__ _ e gnaFure Date record Remanded May 4, 1998 Affirmed i ~ • CAFFREY AUTO SUPPLY, INC. and KENNETH F. CAFFREY, JR., Appellants v. HAMPDEN TOWNSHIP and HAMPDEN TOWNSHIP ZONING HEARING BOARD, Appellees t i r IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA N O. 9-.) 1 7 ~ ~ ~ ~t ,~ ~ J t,t~v~ LAND USE APPEAL PURSUANT TO 53 P.S. §11001-A et. seq. APPEAL OF THE HEARING BOARD DECISION OF MAY 5, 1995, No. 95-02 PARTIES 1. The Appellant Caffrey Auto Supply, Inc. is a Pennsylvania Corporation with its place of business located at 110 Sporting Hill Road, Mechanicsburg, Hampden Township, Cumberland County, Pennsylvania. 2. The Appellant Kenneth F. Caffrey, Jr. is an adult individual and the owner of Caffrey Auto Supply, Inc. l ~ ' I • • 3. The Appellee Hampden Township is a municipality organized and existing under the laws of the Commonwealth of Pennsylvania with its office at 230 Sporting Hill Road, Mechanicsburg, Hampden Township, Cumberland County, Pennsylvania. 4. The Appellee Hampden Township Zoning Hearing Board is a zoning hearing board allegedly constituted under the ordinances of Hampden Township to hear hearing appeals from decisions of zoning officers of Hampden Township. JURISDICTION 5. This Court has jurisdiction to hear this appeal pursuant to 53 Pa.C.S. § 1101-A et.seq. 6. Caffrey Auto Supply, Inc.'s primary business is to supply automotive supplies to automobile dealers. The business deals only with automotive dealers and not the general public 7. Caffrey Auto Supply in March 1987 properly applied for and received a "certificate of use" issued by Hampden Township. 8. In March 1987 the zoning for Caffrey Auto Supply, Inc. was C-G (Commercial-General). Z 9. In January of 1992 Caffrey Auto Supply followed the necessary procedures and steps required by the Pennsylvania Department of Transportation and the Bureau of Professional and Occupational Affairs to secure an automobile dealer's license pursuant to Title 67, Chapter 43 of the Pennsylvania Code and 67 P.S. §53, et. seq. 10. The procedures required by the licensing authorities were specific, detailed, costly and voluminous. Nevertheless, Caffrey Auto Supply complied with each of the requirements and was issued a Dealer's License to sell and wholesale automobiles. One of the requirements was to demonstrate "proof of proper zoning for vehicle sales" and Caffrey Auto Supply produced acceptable proof of the zoning, i.e. C-G zone. See Exhibit "A" which are some of the requirements of the Bureau of Professional and Occupational Affairs. 11. Caffrey Auto Supply began to sell automobiles almost exclusively in a wholesale fashion (i.e. to automobile auctions). Caffrey Auto Supply would sell at retail less than a handful of cars to the general public per year. 12. The retailing and wholesaling of cars was a permitted use in the C-G zone in which Caffrey Auto Supply was located in Hampden Township. 13. The only requirement in existence in 1992 of Hampden Township for Caffrey Auto Supply to conduct business as an automobile retailer/wholesaler was that Caffrey Auto Supply obtain a Certificate of Use. 14. There is no question that as a matter of law and fact Caffrey Auto Supply would have received a Certificate of Use from Hampden Township if Caffrey Auto Supply had made application in 1992 or 1993. 15. No official from Hampden Township ever advised Mr. Caffrey or any of his representatives that a new Certificate of Use was allegedly required because of the automobile retail/wholesale business in which Caffrey Auto Supply was minimally engaged. 16. No application for a Certificate of Use was made by Caffrey Auto Supply because the owner, Kenneth F. Caffrey, Jr., did not realize that one was required. 17. Mr. Caffrey testified at the Zoning Hearing Board that since he had already obtained a Certificate of Use for the automotive supply business and since automobile retail/wholesale use was a permitted use under the C-G zoning ordinance, that he believed no additional Certificate of Use was required. 18. Mr. Caffrey, together with Kenneth J. Hartzell, had prepared the necessary documents to secure the dealers' license without the aid of counsel and were T 1 ( 1 ' • • Hampden Township and Hampden Township Zoning Hearing Board finally through a zoning officer on January 6, 1995 instructed Caffrey Auto Supply to cease and desist from operating as an automotive dealership. 25. An appeal to the Hampden Township Zoning Hearing Board was taken by Caffrey Auto Supply. The Hearing Board upheld the decision of the zoning officer issuing a cease and desist order. A copy of the Board's decision is appended hereto as Exhibit "B." 26. By its inaction in failing to follow its own ordinance which required the Township to determine whether businesses are in compliance with existing Certificate of Use and to register non-conforming uses (Ordinance 2007), the Appellees are guilty of laches and are therefor estopped from issuing a cease and desist order. 27. The interests of justice, fairness and equity require that Hampden Township issue to Caffrey Auto Supply a Certificate of Use for an automobile dealership and to register it as anon-conforming use. WHEREFORE, Caffrey Auto Supply, Inc. and Kenneth F. Caffrey, )r. move this Honorable Court for an Order compelling Hampden Township to issue a Certificate of Use • for an automobile dealership to Caffrey Auto Supply, Inc. and to register Caffrey Auto Supply, Inc. as anon-conforming use. Date: 5 g QJ Respectfully Submitted, ADLER & CLARAVAL By R BERT F. CL RAVAL, ESQUIRE 125 Locust Street P.O. Box 11933 Harrisburg, PA 17108-1933 (717) 233-4780 Supreme Court ID# 19222 Attorney for Appellants 7 ' 106a • ' CAFFREY AUTO SUPPLY, INC. and KENNETH F. CAFFREY, JR., Appellants v. HAMPDEN TOWNSHIP and HAMPDEN TOWNSHIP ZONING HEARING BOARD, Appel lees IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 1995 CERTIFICATE OF SERVICE I hereby certify that I have this day served a true and correct copy of the attached Land Use Appeal Pursuant to 53 P.S. §11001-A, et. seq., Appeal of the Hearing Board Decision Of May 5, 1995, No. 95-OZ by first class mail, postage prepaid, addressed to the following persons: Richard C. Snelbaker, Esq. 44 West Main Street Mechanicsburg, PA 17055 (Attorney for Hampden Twp.) Date: ~~ ~S Saidis, Guido, Shuff & Masland 2109 Market Street Camp H i I (, PA 17011 (Attorneys for Zoning Hearing Board) ADLER & CLARAVAL BY X111 ~I~ ~ ~ V~JI~X~.I C~'~ DENISE I. WILLIAMS, Secretary For Robert F. Claravai -x~~~~i T .. SPOA 260i(i(10/90) ~ ~ ~pMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF STATE BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS REAL ESTATE AND VEHICLE DIVISION STATE BOARD OF VESICLE MANUFACTURERS, DEALERS POST OFFICE BOB 2649 SARRISBUR6, PA 17305-2649 INC TELEPHONE {717) 783-1697 DBA COUNTRY AUTO SALES 110 SPORTING HILL ROAD MECHANICSBURG PENNSYLVANIA 17055 CAFFREY AUTO SUPPLY Dear Applicant: AND SALESPERSONS JULY 21, 1992 IMPORTANT REPLY TODAY YOT TR ADPI3~4'^ON C11NP:OT BE PR'JCZ...n''.~.." L'L'E 'T.".3 T!L° °`?' • 9Y.T:G1~.iEC~ '•L9,r~P:S: ( ) ( ) ( ) ( ) ( ) t' ( ) -,. ( ) ( ) ( ) ( ) ( ) (XXJ Review by the Board at the next Board Meeting. , VD application (SPOA 26028} with appropriate fee. MV salesperson application (SPOA 2602 or SPOA 2ti06), with appropriate fee. Submit original and current VD ]ot licettse and/or MV salcspetson license. No permanent business sign with permanent Lettering, submit photograph. Photograph of premises showing complete overall view (office and lot on one photo). Photograph showing direct outside entrance from display area into sales office. Photograph of inside of dealership office showing desk, phone, lockable filing cabinet and seating arrangement for customers. Copy of lease or deed. Notarized service contract with inspection station showing station's license number, or }roar inspection station license number, if applicable. Display area and office must be used predominately for vehicle sates and completely separate from service or repair area, or other business or residence. Submit hand-drawn diagram on 8 1/2" x 11" sheet of paper of complete ova:-all view of the dealership. This diagram must indicate the locations and dimensions of all building(s), office(s) and display aria(s) of the dealership and the locations of any other businesses located within a building occupied by the dealership. This diagram must be signed by the applipnt attesting that it is a tree and corrtct diagram of the dealership, and the applicant's signature must be notarized. No separate office ( ), display area ( ), telephone used exrlusiveJy for vehicle sales ( ). Copy of telephone bill showing telephone listed in business name. Address must shave physical location (street name, route ~ etc). Not just box number or RD number. Need separate box number from residence ( ). Need separate telephone from residence ( ). Office must be permanently blocked and skirted with approved manufactured skirting. Submit photo to verify. Lot and/or office is unsafe or hazardous to consumers. Proof of proper zoning for vehicle sales. Written explained franchise agreement signed by manufacturer, as per Act ~. Certificate of Occupancy from Department of Labor & Industry - 717-?87-3806. (Note: A copy of at least the plan approval letter is required in order for the Board to request a State Police Inspection. A ropy of the 'approved' certificate of occupancy will then be necessary prior to issuance of your dealer license). MV-349 ( ), MV-131 ( ), MV-375 ( ), SP 4 ( )must be submitted. OTHER: A PROSPECTIVE DEALER MUST BE READY TO CONDUCT BUSINESS BY THE TIME OF THE INSPECTI01 BUT THEY MUST NOT SELL VEHICLES UNTIL RECEIPT OF THEIR VEHICLE DEALER (VD LICENSE) AND DEALER IDENTIFICATION (DIN) NUMBERS. ACCORDING TO THE TROOPER AT PRESENT YOUR SHOWROOM DISPLAY AREA CONTAINS RETAIL AUTO SUPPLIES THAT YOU ARE ATTEMPTING TO REMOVE, IN ORDER THAT CARS CAN BE DISPLAYED IN LIEU OF PARTS STORE. YOUR SHOWROOM-DISPLAY MUST BE READY BEFORE THE BOARD CAN APPROVE YOU FOR LICENSE. PLEASE ADVISE THE BOARD TN WRITING WHEN YOU ARE READY TO BE REINSPECTED. INCLUDE A COPY OF THLS ISIZF.R WCIH TtD~ ABOVE REQUESIFD WFORMAT70N. B? WE DO NOT HEAR FROM YOU W1TfIIN 30 DAYS, YOUR FIIE WIIL BE FORWARDED TO PFIVNDC7T (783-1062} BE ADVLSFD THAT YOU MAY NOT SEIl, VEHICLES UNTII. YOUR ARE PROPERLY LIC~'1VS® AND HOLD A CCIRRENII,Y DATED LICENSE IN YOUR POSSESSION. Refer any questions or correspondence to: FLORENCE BYNON IQ ,~ x i ~ ~-~~~ T ~~ a w hA OPINION OF THE ZONING HEARING BOARD OF HAMPDEN TOWNSHIP CUMBERLAND COUNTY, PENNSYLVANIA APPLICANT: CAFFREY AUTO SUPPLY, INC. LOCATION OF PROPERTY: OWNER: 110 S. SPORTING HILL ROAD MECHANICSBURG HAMPDEN TOWNSHIP CAFFREY AUTO SUPPLY, INC. 95 - 02 SAIDIS, GUIDO, SHUFF & MASLAND 2109 Market Street Camp Hill, PA DOCKET NUMBER: ~ ~ ~ ~ ~ i i HAMPDEN TOWNSHIP ZONING HEARING BOARD IN THE MATTER OF: CAFFREY AUTO SUPPLY, INC. SAIDIS, GUIDO, SHUFF & MASLAND 2109 Market Street Camp Hill, PA This case comes before the Hampden Township Zoning Hearing Board pursuant to provisions of Part 21 of the Hampden Township Zoning Ordinance, Ordinance No. 84-2, as amended, seeking a Certificate of Use for the sale of motor vehicles, and in the alternative, to appeal the decision of the Zoning Officer to discontinue the use of the subject property to sell motorized vehicles. Pursuant to notice duly given as required by the provi- sions of the Zoning Ordinance, a hearing was held before the Hampden Township Zoning Hearing Board at the township building at 230 Sporting Hill Road, Mechanicsburg, PA at 7:30 on Wednes- day, April 5, 1995. In accordance with the provisions of the Zoning Ordinance, notice of the hearing was given to the applicant, the Zoning Officer, to any persons requesting notice, and public notice was given in the manner prescribed by the Municipalities Planning Code, the Hampden Township Zoning Ordinance, and the rules of the Board. 2 I3 • The record of this case consists of the original appli- cation, a record of the proceedings of the hearing of April 5, 1995, and exhibits introduced by the applicant and the township at the evidentiary hearing. FINDINGS OF FACT The Board makes the following findings of fact: 1. Caffrey Auto Supply, Inc. (by Kenneth S. Caffrey, Jr.) is the owner of the property known as 110 Sporting Hill Road, Mechanicsburg, Hampden Township, PA. 2. Said property is improved with a building and several parking spaces, and is in a Commercial-Limited Zone. 3. The applicant originally was using the property as an auto supply business pursuant to a Certificate of Use ~ issued by the township in March of 1987. 4. The applicant also began selling motorized vehicles on a retail/wholesale basis in January of 1992, although Mr. Caffrey testified that he did not receive his SAIDIS, GUIDO, SHUFF & license to sell vehicles until August 1992. MASLAND 2109 Market Street Camp Hill, PA 5. The applicant has never applied for a Certificate of Use for the retailing/wholesaling of motorized vehicles. 3 !~ it ~ 6. Although the selling of vehicles was a permitted use prior to the enactment of an amendment to the Zoning Ordinance in December of 1993, the applicant never sought a Certificate of Use for this, and has subsequently never sought to register any nonconforming use with the township. 7. The applicant testified that he was not aware that he needed a Certificate of Use for the selling of vehi- Iles, although he was aware when he initially applied for a Certificate of Use for his auto supply business. 8. The applicant testified that the primary focus of SAIDIS, GUIDO, SHUFF & MASLAND 2109 Market Street Camp Hill, PA the used car aspect of the business (as opposed to the auto supply business} is wholesale, dealing directly with dealers and the auto auction. Further, the applicant provided informa- tion that he stores vehicles on the premises, which are gener- ally not sold to the public. 9. Applicant testified that he receives less than 10~ of his net income from the retail business of Caffrey P.uto Supply, and that he does not specifically advertise the selling of his used cars. 10. Although applicant made the argument that employees of the township drive by his business each day and 4 f .~ ' • • . have seen advertisements, applicant also stated that the sign for selling of vehicles from the Department of Motor Vehicles is barely visible from the road and that he generally does not promote the selling of the vehicles he warehouses. I1. The township manager found out about the sales of the vehicles in December of 1994 and promptly issued a notice to Mr. Caffrey to discontinue the use of this property as a used car sales site. 12. An off-duty Hampden Township police officer visited Caffrey Auto Supply on March 17, 1995 and was told by an employee that he could purchase a vehicle from the retail business. CONCLUSIONS OF LAW 1. The matter is properly before the Hampden Town- SAIDIS, GUIDO, SHUFF & MASLAND 2109 Market Street Camp Hill, PA ship Zoning Hearing Board, proper notice having been given to all interested parties and the Board having jurisdiction to hear the appeal. 2. Under provisions of §2101.2 of the Zoning Ordi- nance, the Zoning Hearing Board may hear and decide appeals where it is alleged by the applicant that the Zoning Officer has failed to follow prescribed procedures or has misinterpret- ed or misapplied any provision of a valid Zoning Ordinance. 5 l SAIDIS, GUIDO, SHUFF & MASLAND 2109 Market Street Camp Hill. PA 3. Under the provisions of X2109, the Zoning Officer may issue a Certificate of Use stating that the building or structure complies with the provisions of the ordinance, or that the building or structure may be employed for specific uses. 4. The current Zoning Ordinance, as last revised in December of 1993, the Commercial-Limited Zone, eliminated the sale of motor vehicles as a permitted use in a Commercial- Limited Zone. 5. ,The applicant did not apply for a Certificate of Use to sell used cars prior to December of 1993 when such a use was permitted. 6. Section 2002 of the ordinance provides that the owner of the premises occupied by a lawful nonconforming use shall, within one year of the effective date of the change in zoning, report this to the Zoning Officer and secure a Certif- icate of Nonconformance. 7. Even if the appellant had applied for a Certifi- cate of Use for the sale of vehicles prior to the change of the Zoning Ordinance, he never sought a Certificate of Nonconform- ance after the amendment. 6 ~~ • ^ A III ~ • I ~ i ~ • , , ! , , 8. The decision of the Zoning Officer in issuing a "Cease and Desist Order" was correct and the Zoning Hearing Board has no authority to overturn his decision. DISCUSSION In the case before the Board, the applicant proposes to expand the use of the premises on which his auto supply busi- ness is located to permit the sale of used motor vehicles from the premises. In support of his application, he contends that the sale of motor vehicles was a lawful use in 1992 when he began to sell used vehicles and that it is either a lawful nonconforming use or the township is estopped from prohibiting the nonconforming use because of laches. It can be assumed that the applicant was aware that a Certificate of Use was required when he sought to change or extend the nature of his use in 1992 because he had previously applied for a Certificate of Use in 1987 for the auto supply business. Had he applied for a Certificate of Use in 1992, depending on his ability to meet other provisions of the Zoning SAIDIS, GUIDO, SHUFF & Ordinance, he would have been entitled to a Certificate of Use MASLAND 2109 Market Street as motor vehicle sales lots were permissible at the applicant's Camp Hill, PA 7 /8 .. ~ + r i ~ i ~ ~ f ~ ~ , ~ ~ ~ v failed to seek a new permit when he expanded the nature of the business in 1992, and after the business became nonconforming in 1993 he did not seek a Certificate of Nonconformance. While the applicant contends that the location of his business is near the township building, so that township officials would be passing the building every day and should have been aware of the nature of the use of the premises, the altered use of the premises was not easily noticed and, as the premises are located in a Commercial-Limited Zone, the township officials might not have been aware of the unlawful use of the premises. In any event, the applicant should have applied for a Certificate of Use and a Certificate of Nonconformance. Under decisions of Pennsylvania, an applicant who fails to use the available zoning procedures may not contest the validity of a restriction on nonconforming uses in defense of an action brought to enforce the ordinance. Muncy Borough v. Stein, 440 Pa. 503, 270 A.2d 213 {1970); Pfeffer v. Hopewell Township, 60 Pa. Commw. 399, 431 A.2d 1149 (1981). Furthermore, from the testimony presented, it did not SAIDIS, GUIDO, SHUFF & MASLAND 2109 Market Street Camp Hill, PA appear that the applicant expended a substantial sum of money in reliance on the township's alleged acquiescence of the use of the premises, nor did he show that there was any hardship if 10 ~l .~ he is not permitted to expand the use of his business to include the sale of used vehicles. It might be that the applicant can continue the wholesale nature of his business by making proper application to the township and identifying the nature of the wholesale operation and the location of the vehicles, although this shall not be construed that the Zoning Hearing Board agrees that this would be a proper use. While the ordinance requires that the Zoning Officer should use "due diligence" in order to identify and register nonconforming uses and structures in the township, the Zoning Hearing Board is of the opinion that it would be virtually impossible for a Zoning Officer to be cognizant of all the nonconforming uses and structures in the township, particularly where a commercial use is being made of a property in a Commer- cial Zone. DECISION The Zoning Hearing Board hereby denies the granting of a SAIDIS, GUIDO, SNUFF & MASLAND 2109 Market Street Camp Hill, PA Certificate of Use to Caffrey Auto Supply, Inc./Kenneth F. Caffrey, Jr., for the sale of used motor vehicles from the premises and upholds the decision of the Zoning Officer for the reasons as stated herein. Z1 Zz Caffrey Auto Supply, Inc. and Kenneth F. Caffrey, Jr. VS. Hampden Township and Hampden Township Zoning ' Hearing Board ~5 /~ 3/5'6 . Mq Y 2 ~ 1g95 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-2796 CIVIL WRIT OF CERTIORARI COMMONWEALTH OF PENNSYLVANIA) . SS. COUNTY OF CUMBERLAND) TO: Hampden Township and Hampden Township Zoning Hearing Board: We, being willing for certain reasons, to have certified a certain action between Caffrey Auto Supply, Inc. and Kenneth F. Caffrey, Jr., -vs- Hampden Township and Hampden Township Zoaning Hearing Baord pending before you, do corrrtnand you that the record of the action aforesaid with all things concerning said action, shall be certified and sent to our judges of our Court of Corrm~on Pleas at Carlisle, within (2 0) days of the date hereof, together with this writ; so that we may further cause to be done that which ought to be done according to the laws and Constitution of this Commonwealth. WITNESS, the Honorable Harold E. Sheely, P.J. our said Court, at Carlisle, Pa., the 23rd day of M a 19 9 5 . LAWRENCE E. WELKER, Prothonotary ~ . ~~ B ~ ,L ~. Y ' c,f~1, ,1 ~ Deput Prothonotary ~ S~ +3 1 CAFFREY AUTO SUPPLY, INC., IN THE COURT OF COMMON PLEAS OF and KENNETH F. CAFFREY, JR., CUMBERLAND COUNTY, PENNSYLVANIA Appellants vs. 95-2796 CIVIL TERM HAMPDEN TOWNSHIP and HAMPDEN TOWNSHIP ZONING HEARING BOARD, Appellees IN RE: APPELLANTS' PETITION FOR STAY OF ENFORCEMENT ORDER AND NOW, this ,Z G s day of May, 1995, in consideration of the within petition, a Rule is issued upon the appellees to show cause why appellants' petition for stay of enforcement of the decision and order of the Hampden Township Zoning Hearing Board of May 5, 1995, ought not to be granted. This Rule returnable twenty (20) days after service. In the meantime, enforcement to stay. BY THE COURT, ~ ~ /'~~- A. Hess, J. ~6 • • ~..~ CAFFREY AUTO SUPPLY, INC. and KENNETH F. CAFFREY, JR., Appellants v. HAMPDEN TOWNSHIP and HAMPDEN TOWNSHIP ZONING HEARING BOARD, Appellees IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. ORDER AND NOW, this day of 1995, upon consideration of Appellants' Petition, it is hereby ORDERED that the decision of the Hampden Township Zoning Hearing Board dated May 5, 1995 requiring Caffrey Auto Supply to cease and desist activities as an automotive dealership is hereby STAYED pending resolution of the appeal in this case. BY THE COURT: JUDGE ,~ 7 a~ .(: ` e Q l ~ a ~' a ~ ~ ~ g ' ~ N [~+ ~ C p =~ ZO ~~ ~ ~ ~ a ~ ~' o `~ ~ ~Q~'~'' ~~ ~ a ~ ~ ~ ~ J~ ~ ti r ~~ E ~' C O a' a N ~ ~~',t,'. ~1 ~ ~ ~i ~ tQ H a ~ a , A+ G "~ U y a a F~ °4 O ~ a ~ y m F~ .~ h p O W N _ 2 ~ ~ W .L a°o N9 E 0 LL V7 a Z 1011 X74 604 Receipt for Certified Mait No Insurance Coverage Provided ~~~ Do not use for International Mail vo i%~s~avEC[ /See Reverse) s ,t to ~~,~ ~ T~ ~ ZJr .( ~.~.i3~_ ch , P S~trat~a d ZIP Co ~~ ~ <ZA'~ C,~ V J Postage A l CerYhied Fee Special Del(very Fee Pestrictad Del;very Fae. Return Receipt Showing m V~ihom & Date Delivered Return Receipt Showiny to Wnom, Date, and Addressee's Address TOTAL Postage & fees a Postmark or Date Mailed out 5-24-95 C~ CAFFREY AUTO SUPPLY, INC. and KENNETH F. CAFFREY, JR., Appellants v. HAMPDEN TOWNSHIP and HAMPDEN TOWNSHIP ZONING HEARING BOARD, Appel lees IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 1995 APPELLANTS' PETITION FOR STAY OF ENFORCEMENT OF DECISION OF THE HAMPDEN TOWNSHIP ZONING HEARING BOARD ORDER OF MAY 5, 1995 1. Caffrey Auto Supply, Inc. seeks an Order of this Court staying enforcement of the Hearing Board's Decision of May 5, 1995 until this Court has decided on the merits Appellants' Appeal. 2. Under 53 P.S. 11003-A, Appellant may petition for a stay pending an appeal on the merits of a zoning decision. 3. The standard by which the Court may determine if a stay is justified is found in Pennsvlvania Public Utility Commission v Process Gas Consumers Group, 502 Pa. 545, 467 A.2d 805 (1983). ~~ • 4. It is respectfully submitted that the instant appeal and petition fall squarely under Process Gas for the following reasons: a) The appeal filed by Caffrey Auto Supply makes a strong showing that Caffrey Auto Supply is likely to prevail on the merits; b) Caffrey Auto Supply will suffer irreparable injury if the relief is not granted; c) Hampden Township will not be substantially harmed by the issuance of the stay; and d) No other public interest will be harmed by the issuance of the stay. IRREPARABLE INJURY 5. The irreparable injury that Caffrey Auto Supply will suffer if the stay is not granted is the loss of its license as an automobile dealer. 6. There are numerous requirements set forth at 67 P.S. §53 et. seq. and Title 67 Pa. Code Chapter 43 with which an automotive dealer must comply in order to ~` maintain its dealer's license. Some of those requirements are appended to Appellants' appeal as Exhibit "A.". 7. If the Township's cease and desist order is not stayed then Caffrey Auto Supply will not be able to post its dealership sign or park the limited number of cars it has for sale in front of its building, thus violating two of the requirements for its dealer's license and resulting in Penn DOT removing Caffrey Auto Supply's dealer's license permanently. 8. Should Caffrey Auto Supply then prevail on its appeal of the Zoning Hearing Board's decision the victory would be hollow because without the dealer's license the "use" would be gone. LACK OF SUBSTANTIAL HARM 9. Clearly, Hampden Township will not be harmed if CaffreyAuto Supply continues in its current use pending this appeal. 10. Per the Hearing Board`s decision of May 5, 1995, township officials were not even aware of the additional use of the property for a period of almost three years. ~3( 11. Moreover, both parties agree that the use is minimal in that the sign for sate is barely visible from the road and the number of cars parked in front of the building is ten (10) or less. NO HARM TO THE PUBLIC 12. There was no public testimony at the zoning hearing board. in fact, the entire matter was instigated by a township zoning official without receipt of any complaint from the public. 13. Moreover, the use of the premises involves wholesale sales to automobile auctions and little if any sales to the public (i.e. one retail care sold this year}. CONCLUSION 14. The issuance of a stay will neither adversely affect the township or its citizens. But, the refusal to issue a stay will result in Caffrey Auto Supply losing its automotive dealership franchise permanently, whether or not Caffrey Auto Supply ultimately prevails on the merits of its appeal. WHEREFORE, Appellants move this Honorable Court for an Order staying enforcement of the decision of the township zoning officer and the Hampden Township ~-~ 1 ~ ~ Zoning Hearing Board requiring Caffrey Auto Supply to cease and desist from its activities as an automotive dealership. Respectfully Submitted, ADLER & CLARAVAL Date: ~7,~ ,&08ERT F. CL~'CRAVAZ, ESQUIR 125 Locust Street P.O. Box i 1933 Harrisburg, PA 17108-1933 (717) 233-4780 Supreme Court ID# 19222 Attorney for Appellants ~3~ • CAFFREY AUTO SUPPLY, INC. and KENNETH F. CAFFREY, JR., Appellants v. HAMPDEN TOWNSHIP and HAMPDEN TOWNSHIP ZONING HEARING BOARD, Appellees IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 1995 CERTIFICATE OF SERVICE I hereby certify that I have this day served a true and correct copy of the attached Appellants' Petition for Stay of Enforcement of Decision of the Hampden Township Zoning Hearing Board Order of May 5, 1995 by first class mail, postage prepaid, addressed to the following persons: Richard C. Snelbaker, Esq. 44 West Main Street Mechanicsburg, PA 17055 (Attorney for Hampden Twp.) Date: ~1 I ~ 1 Saidis, Guido, Shuff & Masland 2109 Market Street Camp H i I I, PA 17011 (Attorneys for Zoning Hearing Board) ADLER & CLARAVAL BY ~,U~~-- ~ _ W~~X.~~ DENISE I. WILLIAMS, Secretary For Robert F. Claraval ~~: CAFFREY AUTO SUPPLY, INC., and KENNETH F. CAFFREY, JR., Appellants vs. HAMPDEN TOWNSHIP and HAMPDEN TOWNSHIP ZONING HEARING BOARD, Appellees IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-2796 CIVIL TERM PRAECIPE TO ENTER APPEARANCE AND INTERVENE ON BEHALF OF HAMPDEN TOWNSHIP TO: Prothonotary of Cumberland County The undersigned hereby appear for HAMPDEN TOWNSHIP and, as LAW OFFICES SNELHAKER 6REht(VEMAht counsel for said Township, hereby intervene therein as an appellee. Dated: June /~l , 1995 SNELB R EMAN, P.C, By ichard C. Snelbaker 44 West Main Street Mechanicsburg, PA 17055-0318 Attorneys for Hampden Township ~S ~ ~ CAFFREY AUTO SUPPLY, INC., and KENNETH F. CAFFREY, JR., Appellants vs. HAMPDEN TOWNSHIP and HAMPDEN TOWNSHIP ZONING HEARING BOARD, Appellees . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-2796 CIVIL TERM ANSWER OF HAMPDEN TOWNSHIP TO APPELLANTS' PETITION FOR STAY OF ENFORCEMENT OF DECISION OF THE HAMPDEN TOWNSHIP ZONING HEARING BOARD ORDER OF MAY 5, 1995 AND RULE TO SHOW CAUSE DATED MAY 26 1995 TO THE HONORABLE, THE JUDGES OF SAID COURT: AND NOW comes HAMPDEN TOWNSHTP ("Township") by its (Attorneys, Snelbaker & Brenneman, P.C,, and responds to ~Apellants' Petition for Stay of Enforcement of Decision and this Court's Rule to Show Cause issued May 26, 1995, as follows: 1. It is admitted that Appellants seek a stay of the Zoning Hearing Board's Order of May 5, 1995, but it is denied that they have any legal basis therefor. The Township opposes the Petition and requests your Honorable Court to dismiss the Petition, deny the stay of proceedings and vacate the Rule to Show Cause. 2. It is admitted that Appellants may seek a stay of the Zoning Hearing Board's Order, but it is denied that they have any .legal basis therefor. 3. The content of paragraph 3 of the Petition is a L4W OFFICES SNELBAKER BRENNEMAN (conclusion of law to which no answer is required and, therefore, llsuch content is deemed to be denied. ~~ • 4. The content of paragraph 4 of the Petition is a conclusion of law to which no answer is required and, therefore, such content is deemed to be denied. To the extent that such content contains averments of facts, the same are addressed in the remaining paragraphs of this Answer. 5. It is denied that such loss of license (if true) is not irreparable. On the contrary, Appellants can transfer the license to another but lawful location. After reasonable investigation, Township is without knowledge or information sufficient to form a belief as to the averment that the license would be lost if the stay is not granted; therefore, the averment is deemed to be denied and proof is demanded at any hearing on the Petition. 6. Admitted. 7. It is admitted that Appellants will not be allowed to maintain the sign or the supply of cars. After reasonable linvestigation, Township is without informatian or knowledge Insufficient to form a belief as to the truth of the averment that IPennDOT would permanently remove Appellants' license; therefore, ,the averment is deemed to be denied and proof thereof is demanded Iat any hearing on the Petition. 8. After reasonable investigation, Township is without LAW OFFICES SNELBAKER BRENNEMAN 'knowledge or information sufficient to form a belief as to the 'truth of the averment that the license would be unavailable if ~~Appellants were successful; therefore, -2- the averment is deemed to ~9 the contrary, the matter of the Appellants' violation was reported to the enforcement officials by a private citizen of the ,Township who held the elected office of Township Commissioner. .Moreover, the presence or absence of public or private complaint is irrelevant and impertinent. Appellants' use is unlawful, with or without complaint. 13. While it is recognized that Appellants may produce evidence as averred, it is denied that the wholesale nature of use or current degree of retail sales is relevant to the unlawful ,nature of the use. The admitted unlawful use is sufficient per Ise to seek the prohibition, a situation not to be prevented by the granting of a stay. 14. The matters set forth in paragraph 14 of the Complaint are merely summaries or conclusions of matters discussed individually above. Therefore, all of Appellants' contentions in said paragraph 14 are denied and opposed for all the reasons and facts set forth and averred as set forth hereinabove. NEW MATTER By way of further answer and response, Township avers the following: 15. The Petition now before the Court contains no LAW OFFICES SNELAAKER BRENNEMAN verification; therefore, the averments of facts contained therein cannot be accepted as true. 16. Appellants' use of the premises is unlawful by reason of "being in violation of the Hampden Township Zoning Ordinance. 17. Appellants are not likely to prevail on the merits of -4- ~f C n VERIFICATION I, John E. Bradley, Jr., the undersigned, hereby certify that I am the duly constituted Township Manager of the Township of Hampden, an Appellee in the pending proceedings; that I am authorized to make this verification on behalf of said Township and its governing body; and that the facts set forth in the foregoing Answer of Hampden Township to Appellants' Petition for Stay of Enforcement of Decision of the Hampden Township Zoning Hearing Board Order of May 5, 1995 and Rule to Show Cause dated May 26, 2995, are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are subject to the penalties of 18 Pa. C.S. § 4904 concerning unsworn statements to aut~tori~,ies. LAW OFFICES SNELBAKER BRENNEMAN ',Dated: June /5~ , 1995 Jonn ~. t3 actley, Jr. hip Manager" f Hampden Township ~~ • • CERTIFICATE OF SERVICE I hereby certify that I am this date serving true and correct copies of the within Answer of Hampden Township to Appellants' Petition For Stay of Enforcement of Decision of the Hampden Township Zoning Hearing Board Order of May 5, 1995 and ~~Rule to Show Cause Dated May 26, 1995 by sending the same to I other attorneys of record by regular first-class mail postage paid addressed as follows: Robert F. Claraval, Esquire Adler & Claraval P. O. Box 11933 Harrisburg, PA 17108-1933 John E. Slike, Saidis, Guido, P. O. Box 737 Camp Hill, PA Esquire Shuff & Masland 17011-0737 ichard C. Snelbaker SNELBAKER & BRENNEMAN, P.C. Attorneys for Hampden Township LAW OFFICES SNELBAKER BRENNEMAN (Dated: June /c,! , 1995 ~~, ~ ~ CAFFREY AUTO SUPPLY, INC. and KENNETH F. CAFFREY, JR., Appellants v. HAMPDEN TOWNSHIP and HAMPDEN TOWNSHIP ZONING HEARING BOARD, Appellees r IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-2796 CIVIL TERM APPELLANTS' REPLY TO NEW MATTER OF HAMPDEN TOWNSHIP 15. Denied. A verification has been filed with the Prothonotary's Office. 16. Denied. Paragraph 16 is a conclusion of law to which no response is required. 17. Denied. To the contrary, it is very likely that Appellants will prevail on the merits of their appeal. ~ ~ ... WHEREFORE, Caffrey Auto Supply, Inc. and Kenneth F. Caffrey, Jr. move this Honorable Court to grant the relief requested in their Petition. Date: ~ ZC7 Respectfully Submitted, ADLER &CLARAVAL 8y ROBERT .CLARAVAL, ESQUIRE 125 Locust Street P.O. Box 11933 Harrisburg, PA 1 71 08-1 933 (717) 233-4780 Supreme Court ID# 19222 Attorney for Appellants ~r ~ ~ ~, CAFFREY AUTO SUPPLY, INC. and KENNETH F. CAFFREY, JR., Appellants v. HAMPDEN TOWNSHIP and HAMPDEN TOWNSHIP ZONING HEARING BOARD, Appellees IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-2796 CIVIL TERM CERTIFICATE OF SERVICE I hereby certify that I have this day served a true and correct copy of the attached Appellants' Reply to New Matter of Hampden Township by first class mail, postage prepaid, addressed to the following persons: Richard C. Snelbaker, Esq. 44 West Main Street Mechanicsburg, PA 17055 (Attorney for Hampden Twp.) Date: l~J I ~~C( John E. Slike, Esq. Saidis, Guido, Shuff & Masland 2109 Market Street Camp Hill, PA 17011-0737 (Attorneys for Zoning Hearing Board) ADLER & CLARAVAL By - DEN(SE (. WILLIAMS, Secretary For Robert F. Claraval . 9s- a~w~, G~ u, l ~~~~ VERIFICATION The language of the foregoing document is that of counsel and not necessarily my own; however, I have read the foregoing document and to the extent that it is based upon information that 1 have given to counsel, it is true and correct to the best of my knowledge, information, and belief; to the extent that the content of the foregoing document is that of counsel, I have relied upon counsel in making this verification. I understand that any false statements herein are made subject to the penalties of 18 Pa.C.S.A. X4904, relating to unsworn falsification to authorities. Date: ~ ~`r ~ KENNETH F. CAF EY, )R. G ~~~~~~ ~C~ c._.._ c ,-, -~, x ~ ~ _ .r ~ ~ `.; ;::~. ~, ~-; t11 .* ,. } ~ ~ . ~ . Adler & r l Cla ava ,~ ATTORNEYS AT LAW P.O. BOX 11933 125 LOCUST STREET HARRISBURG, PA 1 71 08-1 93 3 LOUIS J. ADLER TELEPHONE ROBERT F. CLARAVAL (717) 233-4780 WILLIAM L. ADLER FAX (717) 234-1670 CRAIG I. ADLER June 20, 1995 Prothonotary's Office Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Re: Caffrey Auto Supply, et. al. v. Hampden Township, et. al. No. 95-2796 Dear Prothonotary: KOHN AND ADLER (1943-1960) KOHN, ADLER &ADLER (1960-1981) Enclosed please find Appellants' Reply to New Matter in the above captioned action. Also enclosed please find Appellant Kenneth F. Caffrey, Jr.'s Verification for the Petition and Rule to Show Cause. Thank you for your attention to this matter. Sinc r ly, ROBER F. CLA RFC:diw Enclosure (Reply to New Matter, Verification) cc: Kenneth F. Caffrey, Jr. Richard C. Snelbaker, Esq. John E. Slike, Esq. ~ i ~~1~~~~~~ ~ ~ LAW OFFICES SAIDIS, GUIDO, SNUFF Sc MASLAND A PROFESSIONAL CORPORATION JOHN E SLIKE 2109 MARKET STREET ROBERT C. SAIDIS P O. BOX 737 CARLISLE OFFICE: EDWARD E. CUIDO GEOFFREY 5. SNUFF CAMP HILL PENNSYLVANIA 17001-0737 2G WEST H1GH STREET ALBERT H. MASLAND , - CARLISLE. PA 17013 JOHNNA J. DEILY (717) 737-3405 (717) 243-G222 TIMOTHY M. ANSTINE FAX (7171 737-3407 FAX (7171 243-G48G REPLY TO CAMP HILL August 18, 1995 G cc~ x ,=. ~ ~m -sa ~~~ ~ Prothonotary' s Office ~~ =~ Cumberland County Courthouse -~ ~ Carlisle, PA 17013 Re: Caffrey Auto Supply, et al v. Hampden Township Z . H . B . NO. 9S - 2796 Gentlemen: Enclosed is the record for the above-captioned action which has been appealed to court. Very truly yours, IDIS, GUIDO,~ SNUFF & MASLAND John E. Slike JES/McC - ~~` Enclosures cc: Richard C. Snelbaker, Esquire Robert Claraval, Esquire Hampden Township ~~~ r -- ----_K___..._,,--_~_.___ _ _ _ , UNDER THE PROVISIONS OF THE HAMPDEN TOWNSHII' ZONING ORDINANCE ORDINANCE NO. 84-2, AS AMENDED. Application is made this I3th day of February , 19 95 by the undersigned for a special exception or variance from the terms of the Hampden Township Zoning Ordinance (Ordinance No. 84-2, as amended), or from a decision made by the Hampden Township Zoning Officer. 1. The name of the applicant is (please print): Caffrey Auto Supply, Inc./ Kenneth F. Caffrey, Jr. whose address is Business Address: 110 Sporting Hill Rd. , Mechanics}~t. whose phone # is: 761-6800 The name of the owner of the real estate (if not the applicant) is: whose address is: 2. This appeal relates to the following section(s) of the Hampden Township Zoning Ordinance: 2109 3. A brief description and location of the real estate affected by such proposed change is as follows: The premisis 110 South Sporting Hill Road is an automotive supply business. As an adjunct, motor vehicles are purchased from dealers and sold to auto auctions. Parcel No.(s): 10-21- 1- 4. The real estate in question is presently classified in the CL Zoning District(s), and is presently being used for the purpose of See #3 above. Existing improvements on the land consist of: One (1) Building and Parking Sr~aces. The Applicant makes this request under Hampden Township Zoning Ordinance Section: 1~ 2101.2 (Decision of Zoning Officer) ^ 2101.4 (Variance) ^ 2101.5 (Special Exception) 6. Set forth the relief requested with reasonable detail of the existing and proposed improvemenu and existing and proposed use. If the appeal relates to a decision of the Hampden Township Zoning Officer, attach a copy of that decision (if in writing) or describe the decision: Appended is the letter of January 17, 1995 from Mr. Darrell L. McMillan. The relief requested is that a Certificate of Use be granted or a withdrawal of the request to discontinue the use of Mr. Caffrey's property be made. 7. In the case of a variance or special exception, attached hereto is a survey of the real estate to be effected, prepared by a registered surveyor or registered professional engineer, indicating the location and size of the real estate, the location and size of the existing improvements, and the location and dimensions of proposed improvements; existing and proposed yard setbacks must be shown in feet and inches. 8. Applicant believes the relief requested should be granted for the following reasons: The letter of January 17, 1995 does not accurately describe the use Mr. Caffrey is making of the property an the use that he is n<?king of t'ne property does not violate the zoning ordinances of Hampden Township. 9. Also attached hereto is the filing fee of 5155.00 for request relating to single family residential uses, or 3225 for requests relating. o all other uses. ~ '!,~ Applicant's Signature Resolution No. 92-30 ees) B:\ZHB.FRM ,- JAS' ~~,~-~i5 QED I 1 ~ 38 A?~ i ~ "~ M R! ~~/ll Hampden 'Ibwnehip bra of C;ommirat3rneersc Melvyn C'.. F~lnkPlstein, lJt'esldcns IBeM+It Seethes, vice Pt-esic~c;nr JSmrti E. Rendler ivrvin W. ~'unlc tx~neld R, MrC:sellin 'TcywrZ6hlp Man(tgnr John B. Rracilr'.y. Jr. Jaau~y 17,1995 Ksat-ath F. Caffrey, Jx. Caffrey Autry Supply 110 Sporting ~ll Road Mccbanic~burg, PA X7055 Re: Aiuto 9A.lee at 110 s. Sporting Hill Road Tw: Purest No.e 10-?r1•ZSir6 Dear Mr. Caffrey: A ~ Thar~lc you for resporuding to our correspondence regarding your use of this p>evparty. Thb Iist of allotiwed uses in the Commsinuial-I ina~itad zoain~ district is fairly cl~nr on this matter urd will prevent us from irsuiug a Certificate of Use for salliag c~rzs at this site. Bart new use that is proposed is th<s Tovv~lip requires such s CertlReate in aeoorda~ace with Zoaiag Qrdinaaca Secaioa Z1U9. The general retail nature of the appravcd business use of your property does not include the gala of motor vehicles. Retailing or w holosaliug of automobiles is a spac+fia usn listed is our Commanaal-General zoning ~isttict. The specai~tc language of the use is; "Mata~r vehicle body shop, motor vehicle and~ar mobile Dome sales garage and orator vehicle and/or trailer sales lot."'I'bis use is not listed as an allowed use in the CommerttiiaiL~Lamited zoning district where your building is situated. VVa reiters~te our request to yt~u to discontinue use of this property as an nutomob>Ye sales lot. Yvu breve the right to appeal the d~eaisioa set forth in this correspand~cace to the Ilaaapdan Township Zoning Hearing Board. Such ate appeal, made pursuant to Section ZIpX of our Zoning Ordinslmac, should ba submitted is writing to t#tis offitca within thirty (3U) days of the dstte you receive this Letter. Should you have say questions about this process, please do eat hrssaitsu td cell this offit~. Sincerely, r d~ ~~~ .~ Darrell I. McMillasa l]iroct(or of Codex Bnforcemcnt Assistant 2(aaing C~tccr nl.Mrl~Ca~t ee; John B. Bradley, Jr., Towsis>;ip 14raaagar 230 S• Sporting Hll! Read MechanlCSburg, !'A t 7055-3c797 FAXa (717) 7(3 t -7867 ,~ ' ' _ ~ -~-~ •~a~~P ~+ ~ ~~ ~~ ~ .a:ssa Rrrlir.~; (7 1 71 76 i -2Fs09 Ftecreatlon (7 t 71 7f 1 .d9 ~ t ..- ~~~---' ~ un.gAP'DEE~ ~f. January 11, 1995 Mr. Darrell L. McMillan Director of Codes Enforcement Hampden Township 230 S. Sporting Hill Road Mechanicsburg, PA 17055 Re: Authorized Uses - 110 S. Sporting Hill Road Tax Parcel No. 10-21-281-6 Dear Mr. McMillan: L ~~ ~~ ~, 110 Sporting ~ Roar Mechanicsburg, PA 1705: (717) 761-680, In reference of your letter of January 6, 1995, I had no idea that we needed a Certificate of Use from Hampden Township. This is based on the fact that when I applied for my dealer license somewhat over 3 years ago, I had to get approval from 1) PA Department of Transportation 2) PA Department of Motor Vehicles 3) Commonwealth of PA, Department of Labor and Industry. This process was very protracted and detailed and one of the requirements was that I had to discontinue completely the retail portion of my automotive supply .business. Consequently, we sell exclusively wholesale and there is currently only 1 full time employee who stays on the premises daily. As a matter of note, the main focus of our used car business is wholesale. We purchase vehicles from dealers and sell to auto auctions. Sometimes during that selling cycle, while we are storing the vehicles, we get an offer from a retail customer. We do not promote the retail trade. We do not advertise and our hours are Monday through Friday 8-5. We are no longer open on Saturdays and we have no evening hours. Obviously, with these hours, it is apparent that we are not focusing on retail sales. Unfortunately, due to my lack of experience and also having observed a used car and service operation next door it never occurred to me that I needed a certificate, ~~ • J ` I `i January 11, 1995 Mr. McMillan Page 2 I hope we can resolve this problem to the satisfaction of everyone and I can obtain the necessary Certificate of Use. Please inform me how to proceed. Very truly yours, CAFFREY AUTO SUPPLY, INC. Kenneth F. Caffrey, Jr. President KFC/bf .~ +J W+i+++ _ ~ r t rt i r e•u es. Hampden Township Board of Commissloncrs Melvyn C. Finkelstein. President isabcll Slathas, Vicc President James E. Rendler Nevin W. Funk Donald R. McCaltin 7trwnshllr Manager John E. Draclley, Jr. January G, 1995 Kenneth F. Caffrey Caffrey Auto Supply 110 S. Sporting Hill Road Mechanicsburg, PA 17055 Re: Authorized Uses - 110 So. Sporting Bill Road Tax Parcel No. 10-21-281-6 Dear Mr. Caffrey: Your business on Sporting Hill Road has been observed selling used cars. A review of the Township files has failed to turn up a Certificate of Use for this type of activity at this site. This use of the premises must be discontinued unless and until you can produce or obtain a Certificate of Use to sell automobiles. The approved uses at this site, office, warehouse and auto parts retailing require a certain amount of parking spaces; spaces which are meant to service these uses. The cars being sold are being parked in spaces required to be set aside for employees and customers of the approved uses. However, regardless of the specific parking needs of the site, the use of the premises as a used car lot is not permitted. Please discontinue use of this property as a used car sales site. If you leave any questions about the matter, please do not hesitate to call this office. Cordially, Q,.I~i.sl0~~ /y~Gil/p Darrell L. McMillan Director of Codes Enforcement Assistant Zoning Officer - DLM/PCH cc: John E. Bradley, Jr., Township Manager 230 S. Sporting bill Road • MechanlCSburg, PA 17055.3()97 • t=AX: (717) 761.7267 Adminlslralion (7 17) 761-0 119 • Ambulance • (7 17) 761-5343 -Police ('7 17) 76 1.2609 -Recreation (7 1 7) 76 I -495 t .~ OPINION OF THE ZONING HEARING BOARD OF HAMPDEN TOWNSHIP CUMBERLAND COUNTY, PENNSYLVANIA SAIDIS, GUIDO, SHUFF & MASLAND 2109 Market Street Camp Hill, PA APPLICANT: LOCATION OF PROPERTY: OWNER: DOCKET NUMBER: CAFFREY AUTO SUPPLY, INC. 110 S. SPORTING HILL ROAD MECHANICSBURG HAMPDEN TOWNSHIP CAFFREY AUTO SUPPLY, INC. 95 - 02 .~ D HAMPDEN TOWNSHIP ZONING HEARING BOARD IN THE MATTER OF: CAFFREY AUTO SUPPLY, INC. This case comes before the Hampden Township Zoning Hearing Board pursuant to provisions of Part 21 of the Hampden Township Zoning Ordinance, Ordinance No. 84-2, as amended, seeking a Certificate of Use for the sale of motor vehicles, and in the alternative, to appeal the decision of the Zoning Officer to discontinue the use of the subject property to sell motorized vehicles. Pursuant to notice duly given as required by the provi- SAIDIS, GUIDO, SHUFF & MASLAND 2109 Mazket Street Camp Hill, PA sions of the Zoning Ordinance, a hearing was held before the Hampden Township Zoning Hearing Board at the township building at 230 Sporting Hill Road, Mechanicsburg, PA at 7:30 on Wednes- day, April 5, 1995. In accordance with the provisions of the Zoning Ordinance, notice of the hearing was given to the applicant, the Zoning Officer, to any persons requesting notice, and public notice was given in the manner prescribed by the Municipalities Planning Code, the Hampden Township Zoning Ordinance, and the rules of the Board. 2 S/ • The record of this case consists of the original appli- cation, a record of the proceedings of the hearing of April 5, 1995, and exhibits introduced by the applicant and the township at the evidentiary hearing. FINDINGS OF FACT The Board makes the following findings of fact: 1. Caffrey Auto Supply, Inc. (by Kenneth S. Caffrey, SAIDIS, GUIDO, SHUFF & MASLAND 2109 Mazket Street Camp Hill, PA Jr.) is the owner of the property known as 110 Sporting Hill Road, Mechanicsburg, Hampden Township, PA. 2. Said property is improved with a building and several parking spaces, and is in a Commercial-Limited Zone. 3. The applicant originally was using the property as an auto supply business pursuant to a Certificate of Use issued by the township in March of 1987. 4. The applicant also began selling motorized vehicles on a retail/wholesale basis in January of 1992, although Mr. Caffrey testified that he did not receive his license to sell vehicles until August 1992. 5. The applicant has never applied for a Certificate of Use for the retailing/wholesaling of motorized vehicles. 3 L~ ' ( I ~ • , ., ., 6. Although the selling of vehicles was a permitted use prior to the enactment of an amendment to the Zoning Ordinance in December of 1993, the applicant never sought a Certificate of Use for this, and has subsequently never sought to register any nonconforming use with the township. 7. The applicant testified that he was not aware that he needed a Certificate of Use for the selling of vehi- Iles, although he was aware when he initially applied for a Certificate of Use for his auto supply business. 8. The applicant testified that the primary focus of the used car aspect of the business (as opposed to the auto supply business) is wholesale, dealing directly with dealers and the auto auction. Further, the applicant provided informa- tion that he stores vehicles on the premises, which are gener- ally not sold to the public. 9. Applicant testified that he receives less than 10$ of his net income from the retail business of Caffrey Auto Supply, and that he does not specifically advertise the selling SAIDIS, GUIDO, o f his used cars . SHUFF & MASLAND 21p9MazketStreet 10. Although applicant made the argument that Camp Hill, PA employees of the township drive by his business each day and 4 ~~ • • have seen advertisements, applicant also stated that the sign for selling of vehicles from the Department of Motor Vehicles is barely visible from the road and that he generally does not promote the selling of the vehicles he warehouses. 11. The township manager found out about the sales of the vehicles in December of 1994 and promptly issued a notice to Mr. Caffrey to discontinue the use of this property as a used car sales site. 12. An off-duty Hampden Township police officer visited Caffrey Auto Supply on March 17, 1995 and was told by an employee that he could purchase a vehicle from the retail business. CONCLUSIONS OF LAW 1. The matter is properly before the Hampden Town- SAIDIS, GUIDO, 5HUFF & MASLAI~ID 2109 Market Street Camp Hill, PA ship Zoning Hearing Board, proper notice having been given to all interested parties and the Board having jurisdiction to hear the appeal. 2. Under provisions of §2101.2 of the Zoning Ordi- nance, the Zoning Hearing Board may hear and decide appeals where it is alleged by the applicant that the Zoning Officer has failed to follow prescribed procedures or has misinterpret- ed or misapplied any provision of a valid Zoning Ordinance. 5 ~Z • • 3. Under the provisions of §2109, the Zoning Officer may issue a Certificate of Use stating that the building or structure complies with the provisions of the ordinance, or that the building or structure may be employed for specific uses. 4. The current Zoning Ordinance, as last revised in December of 1993, the Commercial-Limited Zone, eliminated the sale of motor vehicles as a permitted use in a Commercial- Limited Zone. 5. The applicant did not apply for a Certificate of Use to sell used cars prior to December of 1993 when such a use was permitted. 6. Section 2002 of the ordinance provides that the SAIDIS, GUIDO, SHUFF & MASLAND 2109 Market Street Camp Hill, PA owner of the premises occupied by a lawful nonconforming use shall, within one year of the effective date of the change in zoning, report this to the Zoning Officer and secure a Certif- icate of Nonconformance. 7. Even if the appellant had applied for a Certifi- cate of Use for the sale of vehicles prior to the change of the Zoning Ordinance, he never sought a Certificate of Nonconform- ance after the amendment. 6 '~ III ! L~ ~ ~ ~ ~ i ~ _ 8. The decision of the Zoning Officer in issuing a "Cease and Desist Order" was correct and the Zoning Hearing Board has no authority to overturn his decision. DISCUSSION In the case before the Board, the applicant proposes to expand the use of the premises on which his auto supply busi- ness is located to permit the sale of used motor vehicles from the premises. In support of his application, he contends that the sale of motor vehicles was a lawful use in 1992 when he began to sell used vehicles and that it is either a lawful nonconforming use or the township is estopped from prohibiting the nonconforming use because of laches. It can be assumed that the applicant was aware that a Certificate of Use was required when he sought to change or extend the nature of his use in 1992 because he had previously applied for a Certificate of Use in 1987 for the auto supply business. Had he applied for a Certificate of Use in 1992, depending on his ability to meet other provisions of the Zoning SAIDIS, GUIDO, SHUFF & Ordinance, he would have been entitled to a Certificate of Use MASLAND 2109 Market Street as motor vehicle sales lots were permissible at the applicant's Camp Hill, PA 7 e !, ~~ i location at that time. While the use would have become noncon forming after a December 1993 amendment, applicant could have applied for a Certificate of Nonconformance. When the township became aware that the premises were being used for something other than an auto supply business, it I notified the applicant that this was not a lawful use and that he should cease and desist the sale of motor vehicles. Appli- cant has asked that the Zoning Hearing Board overrule the Zoning Officer's decision and either issue the applicant a Certificate of Use, or to terminate the Cease and Desist Order under the theories of laches and estoppel. While there was testimony that the applicant began to sell used cars from the property in January of 1992, he did not advertise that he was in this business. It appears that the sale of used vehicles was an afterthought to supplement the auto supply business. The applicant would take used cars to the premises, repair them and then sell them to auto auctions or dealers, but if anyone from the general public happened by, the applicant was willing to sell directly to the public. SAIDIS, GUIDU, 5HUFF & Applicant admits that the sign for selling cars issued by the MASLAND State was put in the window at an out-of-the-way location and 2109 Market Street Camp Hill, PA was not easily visible to the public. While there was a time 8 _.~ • when some pennants and flags were placed on the vehicles, these have since been removed and at the present time, a passerby would not be able to determine that there was any commercial use of this property other than the auto supply business. In support of his arguments of estoppel and laches, the applicant cites several cases including Kolesar v. Zoning Hearing Board, 117 Pa. Commw. 259, 543 A.2d 246 (1988}. In the view of the Board, this case is distinguishable on the facts. In Kolesar, the applicant applied for and received a building permit for an auto repair business in 1972, and received a permit to expand the business in 1980. In 1984 the applicant was granted a variance and in reliance on the variance and the prior permits, the applicant expended a substantial amount of money to further promote his business. The applicant was then told by the township that the business was unlawful and that he should cease and desist. The Commonwealth Court found that since the business had been allowed to exist for 12 years, that the township was estopped to deny the applicant the right to continue his business. SAIDIS, GUIDO, SNUFF & In the case before the Board, the facts are substantially MASLAND 2109 Market Street different. Here, the applicant was aware that a Certificate of Camp Hill, PA Use was required as he had applied for one in 1987, but he 9 ~~ ~ • failed to seek a new permit when he expanded the nature of the business in 1992, and after the business became nonconforming in 1993 he did not seek a Certificate of Nonconformance. While the applicant contends that the location of his business is near the township building, so that township officials would be passing the building every day and should have been aware of the nature of the use of the premises, the altered use of the premises was not easily noticed and, as the premises are located in a Commercial-Limited Zone, the township officials might not have been aware of the unlawful use of the premises. In any event, the applicant should have applied for a SAIDIS, GUIDO, SNUFF & MASLAND 2]09 Mazket Street Camp Hill, PA Certificate of Use and a Certificate of Nonconformance. Under decisions of Pennsylvania, an applicant who fails to use the available zoning procedures may not contest the validity of a restriction on nonconforming uses in defense of an action brought to enforce the ordinance. Muncy Borough v. Stein, 440 Pa. 503, 270 A.2d 213 (1970); Pfeffer v. Hopewell TownshiQ, 60 Pa. Commw. 399, 431 A.2d 1149 (1981). Furthermore, from the testimony presented, it did not appear that the applicant expended a substantial sum of money in reliance on the township's alleged acquiescence of the use of the premises, nor did he show that there was any hardship if 10 ~~ . i he is not permitted to expand the use of his business to include the sale of used vehicles. It might be that the applicant can continue the wholesale nature of his business by making proper application to the township and identifying the nature of the wholesale operation and the location of the vehicles, although this shall not be construed that the Zoning Hearing Board agrees that this would be a proper use. while the ordinance requires that the Zoning Officer should use "due diligence" in order to identify and register nonconforming uses and structures in the township, the Zoning Hearing Board is of the opinion that it would be virtually impossible for a Zoning Officer to be cognizant of all the nonconforming uses and structures in the township, particularly where a commercial use is being made of a property in a Commer- cial Zone. DECISION The Zoning Hearing Board hereby denies the granting of a SAIDIS, GUIDO, SNUFF & MASLAND 2109 Market Street Camp Hill, PA Certificate of Use to Caffrey Auto Supply, Inc./Kenneth F. Caffrey, Jr., for the sale of used motor vehicles from the premises and upholds the decision of the Zoning Officer for the reasons as stated herein. 11 ~~ ~ Dated: May 5, 1995 • 1 w .. HAMPDEN TOWNSHIP ZONING HEARING BOARD By: John Holland, Chairman Eugene Baldwin R By: ~ t~ /L J///o-~~hn McAt e e B . (~ Y ~_ Daniel J. Flint SAIDIS, GUIDO, SHUFF & MASLAND 2109 Mazket Street Camp Hill, PA 12 ~ `1 ~ A ' ~. i ~ _~ .,, ,~ ~,,~ HAMPDEN TOWNSHIP ~ ~ ~ ~ ~ '"~' ~ ®. 122 .~ .~ _ ~- ~- ~ER~~~~~~~E ~?~ E ERM~`~ DATF. April 24, 1987 __~~ APPLICANT' Caffrey Auto Supply, Inc. Ph.ONE 697-9240 ;~L;;~~-~~ 11 Silver Drive, I~chanicsburg PA 17055 o i~i3 ~:R Keebler Corporation _ M ___. I'HON E _ !~.DDRESS Elmhurst, Ill SITE LO~;ATI~JN 110~rting Hill Roads MechanicsburcL PA `__ PROPOSED USE sale, storage and distribution of auto s and }~y_~~~t,Tp7; P~ ~_ _ ~ Would have retail sales from cc~unt~ c~h.~l~sa 1 a ~; k- ~n ,~~e].i~r~r. 20i~tN~: Dt ,~RIGt C-G ?'OT.AL ACRF.AGr L„g. ar~p,,,s +- L,Gx I~.~ 209' front x 3I6'_ - BUILT~?NG'~i2E~Z~(~ _nfl ~..__ft.___.._.~__ 4salesman on the road & ii!`"'`~i.n'. _`~ r tT'LC~Y>.?. 9 at filly}1]~tV TC?T::.~ t~~RE:ZiSu S?ACES 2[~, _ ^ T i r, ! l ! r,~. SITE: PLt~Jd _ ...OL`~~ ti ~X, Yi/S ~ } .,~. 'r''J~L'.C S+Tt~='~r: X1 IFS t~ ) ?v0 ri;+I?LIC SEWER (X) YES ( ) vii R ~.i~ttiRk S PEF?iIT FEF ry?i~ ,~ 10.0~.,~.____L_`~`~ ~ ~~ +~ "~ ~~~ ~ ~aD io ,ry~~ ~ Itv>~'ECTIt~iv :-.;71; AFPRCL~~L Robert S. Greene, Jr. ...____ .-._ LATFOR.CEME;~P OFFZt:ER ~.. DATE FIL.N: C;~PY 230 S. Sporting Hill Road • Mechanicsburg, PA 17055-3097 • (717) 761-0119 ~~~ Y Ken Hartzell COUNTRY AUTO SALES, INC. `` Business 761-6800 110 Sporting Hill Rd. Home 540-5196 Mechanicsburg, PA 17055 Beeper 760-2412 717-632-7722 Z~c~z~err~a~.ct 7~an~xac~-t.~r~ ~~ec. METAL BUILDINGS PLANTS UTILITY LINES POST OFFICE BOX 143 HANOVER, PA 17331 PATRICK STAUB -PURCHASING AGENT . .. Hampden Township 230 5. Sporting Hill Road Mechanicsburg, PA 17055 A/C 717-761.-0119 APPLICATION FOR A CERTIFICATE OF USE .,,r , . APPLICANT Caffrey Auto Su~21.y TnC _ __PHONE 697-9240 Present ABDP.ESS 11 Silver Drive Mechanicsbu.r_~ PA 17055 OWNER' S NAME Keebler Corporation _ PHONE ADDRESS lmh.ircf- Tl ~ SITE LOCATION 110 S Sporting Hill Road PROPOSED USE (.Specifically Describe Nature of Business) sale, storage and distribution of auto parts and body shop supplies. Would have retail sales from counter, wholesale pick up and delivery. _ ~_ ___ ZONING DISTRICT C -_ G TOTAL ACREAGE 1 • 4 acres +- '314' 27 000.00 sq. ft. LOT SIZE 209' front X ~~'~~"' °"' BUILDING SIZE ~ 4 salesman on the road & NUMBER OF EMPLOYEES 9 at facility TOTAL PARKING SPACES 14- PUBLIC WATER ( ~ YES { ) NO PUBLIC SEWER (X) YES ( ) NO THE ZONING OFFICER MAY REQUIRE A SITE IMPROVEMENT PLAN TO BE SUBMITTED WITH THIS APPLICATION SIGNATURE OF APPLICANT ~/~.-~~ DATE 1(21 / 87 F rst Gommercia Re`a1 sta e orp. gen RECEIVED BY C''~c~ .,/ ,~~--- DATE l Signature of Township Official Note - Township approved use application as submitted, No occupancy permit will be issued until site plan. of existing property with bldg. on site, and lay-out of building interior is filed with Hampden Township Building Department. R ' Charles M. Kemberling, Ma r/Secretary t ._ _i •t , ~ , ~'•....~ iampden Township oard or Commissloncrs telvyn C. Flnkelsteln, President tabcfl Slathas, vice Presidcnt amen E. Rendler levin W. Funk tonald R. McCallln bwnshlp 1-tnnngcr ohn E. Dradlcy, fir, January G, 1995 Kenneth F. Caffrey Caffrey Auto Supply 110 S. Sporting Hill Road Mechanicsburg, PA 17055 Re: Authorized Uses - 110 So. Sporting T3i11 Road Tax Parcel No. 10-21-281-6 Dear Mr. Caffrey: 1 X' Your business on Sporting Hill Road has been observed selling used cars. A review of the Township files has failed to turn up a Certificate of Use for this type of activity at this site. This use of the premises must be discontinued unless and until you can produce or obtain a Certificate of Use to sell automobiles. The approved uses at this site, office, warehouse and auto parts retailing require a certain amount of parking spaces; spaces which are meant to service these uses. The cars being sold are being parked in spaces required to be set aside for employees and customers of the approved uses. However, regardless of the specific parking needs of the site, the use of the premises as a used car lot is not permitted. Please discontinue use of this property as a used car sales site. If you have any questions about the matter, please do not hesitate to call this office. Cordially, Darrell L. McMillan Director of Codes Enforcement Assistant Zoning Officer - DLM/PCH ~ • cc: John E. Bradley, Jr., Township Manager 230 S. Sporling 1-1111 Road • Mechanicsburg, PA 17055-3c)97 • f=AX: (717) 761-7267 Adml~lslrallon (7 1 7) 761-01 19 • Ambulance • (7 17) 761-5343 • Police ('7 17) 7G 1.2609 • Recreation {7 17) 76 1-495 1 `7 ., t ''"" - ~ /~ Hampden Township Board of CommIss[oners Metvyn C. Finkelstein, President isabell Stathas, vice President James E. Rendler Nevin W. Funk Donald R. McCallin Township Manager John E. Bradley, Jr. January 1'7,1995 Kenneth F. Caffrey, Jr. Caffrey Auto Supply 110 Sporting Hill Road Mechanicsburg, PA 17055 Re: Auto Sales at 110 S. Sporting Hilf Road Taz Parcel No.:10-21-281-6 Dear Mr. Caffrey: Thank you for responding to our correspondence regarding your use of this property. The list of allowed uses in the Commercial-Limited zoning district is fairly clear on this matter and will prevent us from issuing a Certificate of Use for selling cars at this site. Each new use that is proposed in the Township requires such a Certificate in acxordance with Zoning Ordinance Section 2109. The general retail nature of the approved business use of your property does not include the sale of motor vehicles. Retailing or wholesaling of automobiles is a specific use listed in our Commercial-General zoning district. The specific language of the use is: "Motor vehicle body shop, motor vehicle and/or mobile home sales garage and motor vehicle and/or trailer sales lot." This use is not listed as an allowed use in the Commercial-Limited zoning district where your building is situated. We reiterate our request to you to discontinue use of this property as an automobile sales lot. You have the right to appeal the decision set forth in this correspondence to the Hampden Township Zoning Hearing Board Such an appeal, made pursuant to Section 2101 of our Zoning Ordinance, should be submitted in writing to this of~.ce within thirty (30) days of the date you receive this letter. Should you have any questions about this process, please do not hesitate to call this office. Sincerely, r ~ ~~ ~fl ~: Darrell L. McMillan Director of Codes Enforcement Assistant Zoning Officer DLMlPCH cc: John E. Bradley, Jr., Township Manager 230 S. Sporting Hill Road Mechanicsburg, PA 17055-3097 ~ FAX: (71 7) 761-7267 Administration (7 17} 761-0 l 19 Ambulance • (7 17) 76 I -5343 • Police (7 17} 761-2609 • Recreation (7 1 7) 761-4951 ~ ~Jr f~~~~yS PR.-RECIPE FOR LISTING C.~SE FOR .aRGL~IEtiT ~~Iust be typewritten and submitted in dupiicatei TO THE PROTHONOT.~RY;'OF Ct;~IBERL.~;tiD COI;~iTti": Please:ist the :vi thin :;latter for the nett: C~,P'I'ION OF CASE (entire caption must be stated in full) CAFFREY AUTO SUPPLY, INC., and KENNETH F. CAFFREY, JR., ~- ,_: Pre-Trial .~r~ument Curt i ~i .~reument Court Appellants, ~1~i~~~ vs. HAMPDEN TOWNSHIP and HAMPDEN TOWNSIIP ZONING HEARING BOARD, Appellees. ~~RI~~x X~ ~o. A ,-2796 Ci:-tl ~f'erm ;9 I. State matter to be ar;ued (i. e., plaintiffs motion for new trial. defendant's demurrer to complaint, etc.): .Appellants' Land Use Appeal from Zoning Hearing Board Decision of May 5, 1995 ?. Identify counsel who will ar,ie case: Appellants; (a) fortx Robert F. Claraval, Esq. (Adler & Claraval_)_ Add es P. O. Box 11933, Harrisburg, PA 17108-1933 s]'lees (b) Tor ~€ Richard C. Snelbaker, Esq. (Snelbaker & Brenneman, Address: P. 0. Box 318, :Mechanicsburg, PA 17055-0318 3. I will notify all parties in writing •.vi 'in rvo days that ties case has been listed for argument. _ 4. Argument Court Date: December 6, 1995 Call of Argument List Date: N A SNEL ER ~'EPr.A.v , P . C . B i,.~ttornev far Appellees ) Dated: November 2, 1995 CC: Robert F. Claraval, Esq. (Atty. for Appellants) John E. Slike, Esq. (Atty. for Hampden Township Zoning Hearing Board) ~~~ <_~ .c 'c: ' r~ 4~'t~`~ ti' ~ c3 't .~.. -'r titi '~^~ :f :.C:J - wcs ~ ~~ ~n / ~ ~i(~y-~ Lo l 9 S i CAFFREY AUTO SUPPLY, INC. IN THE COURT OF COMMON PLEAS OF and KENNETH F. CAFFREY, JR., CUMBERLAND COUNTY, PENNSYLVANIA Appellants vs. N0. 95-2796 HAMPDEN TOWNSHIP and HAMPDEN TOWNSHIP ZONING HEARING BOARD, Appellees IN RE: MOTION TO STRIKE APPEAL FROM ARGUMENT COURT ORDER AND NOW, this ,Z o' day of November, 1995, a rule is issued on the appellees to show cause why the relief requested in the within motion ought not to be granted. This rule returnable seven (7) days after service. BY THE COURT, '~ Kevi A. Hess, J. l5~ i • CAFFREY AUTO SUPPLY, INC. and KENNETH F. CAFFREY, JR., Appellants v. HAMPDEN TOWNSHIP and HAMPDEN TOWNSHIP ZONING HEARING BOARD, Appellees IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : NO. 95-2796 ORDER AND NOW, this day of 1995, upon consideration of the Motion of Appellants' counsel, the Land Use Appeal listed by Appellees' counsel for the December 6, 1995 Cumberland County Argument Court is hereby stricken. Counsel is directed not to re-list the matter for argument until 60 days after the decision of the Hampden Township Zoning Hearing Board with respect to the hearing held November 1, 1995. BY THE COURT: KEVIN A. HESS, Judge / ~ `, • CAFFREY AUTO SUPPLY, INC. and KENNETH F. CAFFREY, JR., Appellants v. HAMPDEN TOWNSHIP and HAMPDEN TOWNSHIP ZONING HEARING BOARD, Appellees 131 a IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-2796 MOTION TO STRIKE LAND USE APPEAL FROM ARGUMENT COURT 1. On May 26, 1995, the Cumberland County Court through the Honorable Kevin A. Hess, Judge issued an Order To Show Cause dated May 26, 1995 upon the Appellees Hampden Township and the Hampden Township Zoning Hearing Board. The Order required the Appellees to show cause why Caffrey Auto Supply, Inc. and Kenneth F. Caffrey, Jr.'s Petition for Stay of Enforcement of the Decision and Order of the Hampden Township Zoning Hearing Board of May 5, 1995 ought not to be granted. Enforcement of the decision was stayed in the meantime. 1.~~ • 132a 2. By letter and Praecipe dated November 2, 1995, counsel for the Appellees listed the above matter for argument court to be held in the Cumberland County Court on December 6, 1995. 3. Prior to that listing and immediately following the issuance of the Court's Order of May 26, 1995, Kenneth F. Caffrey, Jr. and Caffrey Auto Supply initiated a second proceeding before the Hampden Township Zoning Hearing Board. That proceeding requested that the Zoning Hearing Board reverse a second decision of the Zoning Hearing Officer denying the issuance of a Certificate of Use and that a Certificate of Use for the premises in question be issued by the Zoning Hearing Board. 4. The Heazing Boazd conducted a hearing on November 1, 1995 but has yet to render a decision. 5. In the likely event that the Heazing Boazd refuses to grant the Certificate of Use to Mr. Caffrey then Appellants will appeal that decision to the Cumberland County Court. On the other hand, should the Hearing Board grant the Certificate of Use then the Board's ruling of May 26, 1995 will become moot. 6. It is a waste of judicial resources for argument to be held on Caffrey Auto Supply's first appeal while another matter with substantially similar issues is pending. /~, • 133a WHEREFORE, Kenneth F. Caffrey, Jr. and Caffrey Auto Supply, Inc, move this Honorable Court for an Order striking from the argument court list of December 6, 1995 the Appellees Hampden Township and Hampden Township Zoning Hearing Board's request for argument and that the matter not be listed for argument until after the Zoning Hearing Board issues its opinion based upon the November 1, 1995 hearing and after a proper appeal is filed from that decision by Kenneth F. Caffrey, Jr. and Caffrey Auto Supply, Inc. Respectfully Submitted, Date: ~, ADLER & CLARAVAL By ROBERT F. CLARAVAL, ESQ IRE 125 Locust Street P.O. Box 11933 Harrisburg, PA 17108-1933 (717) 233-4780 Supreme Court I.D. # 19222 Attorney for Appellants ~~ • CAFFREY AUTO SUPPLY, INC. and KENNETH F. CAFFREY, JR., Appellants v. HAMPDEN TOWNSHIP and HAMPDEN TOWNSHIP ZONING HEARING BOARD, Appellees 134a • IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-2796 CERTIFICATE OF SERVICE I hereby certify that I have this day served a true and correct copy of the attached Motion to Strike Land Use Appeal from Argument Court by first class mail, postage prepaid, addressed to the following person: Richard C. Snelbaker, Esq. Snelbaker & Brenneman 44 West Main Street Mechanicsburg, PA 17055 ADLER & CLARAVAL Date: ~~/ S By DENISE I. WILLIAMS, Secretary For Robert F. Claraval l~~ CAFFREY AUTO SUPPLY, INC. and KENNETH F. CAFFREY, JR., Appellants vs. HAMPDEN TOWNSHIP and HAMPDEN TOWNSHIP ZONING HEARING BOARD, Appellees IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-2796 ANSWER OF APPELLEE HAMPDEN TOWNSHIP TO APPELLANTS' MOTION TO STRIKE LAND USE APPEAL FROM ARGUMENT COURT AND RULE TO SHOW CAUSE ISSUED NOVEMBER 20. 1995 TO THE HONORABLE KEVIN A. HESS: AND NOW comes HAMPDEN TOWNSHIP, an Appellee herein, and responds to the Rule issued on November 20, 1995, to show cause why the relief should not be granted on Appellants' Motion to Strike Appeal from Argument Court as follows: A. INTRODUCTION - PREFACE The Order of November 20, 1995, was served upon the undersigned counsel by receipt thereof on November 22, 1995. This Answer first responds to Appellants' Motion to Strike Land Use Appeal from Argument Court on a paragraph-by-paragraph basis followed by additional reasons under the heading of New Matter. B. ANSWER TO MOTION LAW OFFIGES SNELBAKER BRENNEMAN 1. The averments of paragraph 1 of the Motion are admitted as to the statement of procedural history. By way of further U 1N3 • i response, it is averred that Appellee Hampden Township responded to the Rule issued May 26, 1995, by filing an Answer thereto on June 14, 1995, a true copy of which is attached hereto marked "Exhibit A". It is further averred that Appellant took no further action on its Petition subsequent to the filing of the Answer aforesaid. 2. Admitted. 3. It is admitted that the Appellants instituted a second proceeding before the Hampden Township Zoning Hearing Board, but it is denied that such proceeding was initiated "immediately following the Court's Order of May 26, 1995." On the contrary, it is averred that Appellants filed an Application for a Certificate of Use with Hampden Township on September 14, 1995, which was denied by the Zoning Officer by written document dated September 22, 1995, from which Appellants appealed to the Zoning Hearing Board by Application received October 2, 1995. Therefore, more than 4 months elapsed before the second proceeding was filed with the Zoning Hearing Board. It is denied that the matter filed on October 2, 1995, LAW OFFICES SNELBAKER BRENNEMAN with the Zoning Hearing Board was an appeal from a second decision of the Zoning Officer denying a Certificate of Use. On the contrary, the present appeal (listed for argument) was from a decision of the Zoning Officer ordering Appellants to cease and desist their unlawful use of their premises, said use not having been permitted or authorized by a Certificate of Use -- no such application having been sought or requested for the unlawful uses -2- ~~~ provoking the cease and desist order. The matter presently pending before the Zoning Hearing Board involves the denial of Application for Certificate of Use on September 22, 1995. 4. Admitted. 5. The content of paragraph 5 is speculative opinion and not averments of fact and, therefore, no response is required. However, Township of Hampden denies that the present appeal "will become moot" if the Zoning Hearing Board grants the Certificate of Use. On the contrary, Township of Hampden has the right of appeal from such decision, which will supersede such decision, thereby leaving the cease and desist order intact. 6. It is denied that argument in the present proceeding is a "waste of judicial resources". On the contrary, the present matter was instituted by the Appellants and is ripe for decision. The content of New Matter hereinbelow is incorporated herein as further response to the assertion of "waste". NEW MATTER By way of further response to said Rule to Show Cause, Appellee Hampden Township avers as follows: 7. Appellants' use of the subject premises in the then C-G lAW OFFICES SNELBAKER SRENNEMAN Commercial General zoning district commenced in 1987 under Certificate of Use Permit No. 122 which authorized the following use(s) "Sale, storage and distribution of auto parts and body shop supplies. Would have retail sales from counter, wholesale pick-up and delivery." (Emphasis added.} -3- ~~ ~~ j 8. Thereafter, without obtaining a Certificate of Use Permit, Appellants commenced the sale of motor vehicles. 9. The present proceeding involves the determination of Appellants' violation of the Hampden Township Zoning Ordinance as amended in December of 1993. The amendment reclassified the area of Appellants' premises from C-G Commercial General to C-L Commercial Limited, which latter classification does not permit i the sale of motor vehicles, whether at retail or wholesale. Appellants used the subject premises for the retail and wholesale sale of motor vehicles subsequent to said amendment, for which the Zoning Officer issued an order directing Appellants to cease and desist such use. 10. Appellants had no permit (Certificate of Use) to sell vehicles while the premises was previously classified as C-G Commercial General. Therefore, they had no right to continue such activity as a lawful pre-existing use under the new C-L Commercial Limited zoning classification. 11. Appellants appealed the cease and desist order to the Hampden Township Zoning Hearing Board, which Board affirmed the order. Appellants have now appealed the latter decision, which is the subject of the present litigation. 12. The new proceeding cited by Appellants is their belated LAW OFFICES S NELBAKER SC BRENNEMAN quest for permission (Certificate of Use) to operate a motor vehicle sales business in the new C-L Commercial Limited zoning district, which, as stated above is not a permitted use. -4- i~~ 13. The application for Certificate of Use submitted on September 14, 1995 (long after the Zoning Hearing Board decision l in the present case dated May 5, 1995) was denied by the Zoning i, I Officer on September 22, 1995, for the principal reasons that they requested use is not permitted in the C-L district and that, in any event, insufficient parking exists if the use is changed from that originally permitted. 14. The proceeding still pending before the Zoning Hearing Board does not act as a supersedeas as against the appeal presently pending in this Court for Argument. 15. While the determination of the present case can be LAW OFFICES SNELBAKER BRENNEMAN dispositive of the case pending before the Zoning Hearing Board, the reverse thereof is not true. The present case involves the review of determination of Appellants actual unlawful use of the premises; the pending Zoning Hearing Board case involves the determination of the propriety of denial of a request for a Certificate of Use for future uses prohibited by the Zoning ..Ordinance. 16. No judicial economy will be accomplished by delaying the present matter pending a decision by a tribunal not of record. 17. Appellee Hampden Township is entitled to a decision on the appeal from the Zoning Hearing Board sustaining its directive to Appellants to cease and desist their unlawful use of the premises, said matter being ready for decision and not dependent on the action of any inferior tribunal. WHEREFORE, Appellee Hampden Township respectfully requests -5- ~~ ~ CAFFREY AUTO SUPPLY, INC., and KENNETH F. CAFFREY, JR., Appellants vs. HAMPDEN TOWNSHIP and HAMPDEN TOWNSHIP ZONING HEARING BOARD, Appellees IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-2796 CIVIL TERM _- ANSWER OF HAMPDEN TOWNSHIP TO APPELLANTS' PETITION FOR STAY OF ENFORCEMENT OF DECISION OF THE HAMP.DEN TOWNSHIP ZONING HEARING BOARD ORDER OF MAY 5, 1995 AND RULE TO SHOW CAUSE DATED MAY 26, 1995 TO THE HONORABLE, THE JUDGES OF SAID COURT: AND NOW comes HAMPDEN TOWNSHIP ("Township") by its Attorneys, Snelbaker & Brenneman, P.C., and responds to ~Apellants' Petition for Stay of Enforcement of Decision and this Court's Rule to Show Cause issued May 26, 1995, as follows: 1. It is admitted that Appellants seek a stay of the Zoning Hearing Board's Order of May 5, 1995, but it is denied that they have any legal basis therefor. The Township opposes the Petition and requests your Honorable Court to dismiss the Petition, deny !the stay of proceedings and vacate the Rule to Show Cause. 2. It is admitted that Appellants may seek a stay of the Zoning Hearing Board's Order, but it is denied that they have any legal basis therefor. 3. The content of paragraph 3 of the Petition is a LAW OFFICES SNELDAKER BRENNEMAN conclusion of law to which no answer is required and, therefore, such content is deemed to be denied. EXHIBIT A (Page 1 of 7 Pages) ~ 70 4. The content of paragraph 4 of the Petition is a conclusion of law to which no answer is required and, therefore, such content is deemed to be denied. To the extent that such content contains averments of facts, the same are addressed in the remaining paragraphs of this Answer. 5. It is denied that such loss of license (if true) is not irreparable. On the contrary, Appellants can transfer the license to another but lawful location. After reasonable investigation, Township is without knowledge or information sufficient to form a belief as to the averment that the license would be lost if the stay is not granted; therefore, the averment is deemed to be denied and proof is demanded at any hearing on the Petition. 6. Admitted. 7. It is admitted that Appellants will not be allowed to (maintain the sign or the supply of cars. After reasonable investigation, Township is without information or knowledge sufficient to form a belief as to the truth of the averment that PennDOT would permanently remove Appellants' license; therefore, the averment is deemed to be denied and proof thereof is demanded at any hearing on the Petition. 8. After reasonable investigation, Township is without LAW OFFICES SNELBAKER BRE:INEMAN jknowledge or information sufficient to form a belief as to the truth of the averment that the license would be unavailable if (Appellants were successful; therefore, the averment is deemed to !~ ~I '! _2_ EXHIBIT A (Page 2 of 7 Pages) 7~ their appeal. The findings and conclusions of the Zoning Hearing Board are supported by substantial evidence of record and are consistent with the law. WHEREFORE, Appellee Hampden Township respectfully requests your Honorable Court to deny the stay of enforcement, dismiss the Petition and vacate the Rule to Show Cause. P.C. LAW OFFICES SNELBAiCER BRENNEMAN By ~--~~ichard C. Snelbaker A orneys for Hampden Township -5- EXHIBIT A (Page 5 of 7 Pages) ~; ~~~` • CERTIFICATE OF SERVICE I hereby certify that I am this date serving true and correct copies of the within Answer of Hampden Township to Appellants' Petition For Stay of Enforcement of Decision of the Hampden Township Zoning Hearinq Board Order of May 5, 1995 and Rule to Show Cause Dated May 26, 1995 by sending the same to other attorneys of record by regular first-class mail postage paid addressed as follows: Robert F. Claraval, Esquire Adler & Claraval P. O. Box 11933 Harrisburg, PA 17108-1933 John E. Slike, Esquire Saidis, Guido, Shuff & Masland P. O. Box 737 Camp Hill, PA 17011-0737 ichard C. Snelbaker SNELBAKER & BRENNEMAN, P.C. Attorneys for Hampden Township Dated: June ~c,! , 1995 LAW OFFICES SNELBAKER BRENNEMAN EXHIBIT A (Page 7 of 7 Pages) ~ ~/ • CERTIFICATE OF SERVICE I hereby certify that I am this date serving true and correct copies of the within Answer of Appellee Hampden Township to Appellants' Motion to Strike Land Use Appeal from Argument Court and Rule to Show Cause Issued November 20, 1995 by sending the same to other attorneys of record by regular first-class mail postage paid addressed as follows: Robert F. Claraval, Esquire Adler & Claraval P. O. Box 11933 Harrisburg, PA 17108-1933 John E. Slike, Esquire Saidis, Guido, Shuff & Masland P. O. Box 737 Camp Hill, PA 17011-0737 ichard C. Snelbaker SNELBAKER & BRENNEMAN, P.C. Attorneys for Appellee Hampden Township Dated: November 27, 1995 LAW OFFICES S NELBAKER BRENNEMAN ~~ CAFFREY AUTO SUPPLY, INC. IN THE COURT OF COMMON PLEAS OF and KENNETH F. CAFFREY, JR., CUMBERLAND COUNTY, PENNSYLVANIA Appellants vs. N0. 95-2796 HAMPDEN TOWNSHIP and HAMPDEN TOWNSHIP ZONING HEARING BOARD, Appellees IN RE: MOTION TO STRIKE APPEAL FROM ARGUMENT COURT ORDER AND NOW, this ,z_ S ~ day of November, 1995, the within motion to strike ~r~z g~ys appeal from argument court is DENIED without prejudice to the appellants to brief and argue in connection with the argument court scheduled for December 5, 1995, their request that the decision herein be deferred until after the decision of the Hampden Township Zoning Hearing Board with respect to its hearing held November 1, 1995. BY THE COURT, Kevin .Hess, J. Robert F. Claraval, Esquire For the Appellants Richard Snelbaker, Esquire For the Appellees :rlm V `~ , j' /~4 137a 16. Denied. It will be a waste of judicial resources for this Court to decide whether the cease and desist order was proper because it is Appellants' intention that if the Hampden Township Zoning Hearing Board finds that no Certificate of Use for the premises be issued then that matter will also be appealed to the Court. Slightly different issues will then be raised before the Court at that time which could have easily been resolved at a combined argument of both appeals. Therefore, it is clearly a waste of judicial economy for the case to proceed to argument on December 6, 1995. 17. Paragraph 17 is a conclusion of law to which no response is required. WHEREFORE, Appellants Kenneth F. Caffrey, Jr. and Caffrey Auto Supply, Inc. move this Honorable Court for an Order striking the case from argument scheduled for December 6, 1995. ,-- Date: J / ~ ~ ~ ~ Respectfully Submitted, ADLER ~. CLARAVAL i ROBERT F. CLARAVAL, ESQUIRE 125 Locust Street P.O. Box 11933 Harrisburg, PA 17108-1933 (717) 233-4780 Supreme Court ID# 19222 Attorney for Appellants l~~ VERIFICATION The language of the foregoing document is that of counsel and not necessarily my own; however, I have read the foregoing document and to the extent that it is based upon information that I have given to counsel, it is true and correct to the best of my knowledge, information, and belief; to the extent that the content of the foregoing document is that of counsel, I have relied upon counsel in making this verification. I understand that any false statements herein are made subject to the penalties of 18 Pa.C.S.A. §4904, relating to unsworn falsification to authorities. Date: (~ 2 ~ KENNETH F. CA , /~ CAFFREY AUTO SUPPLY, INC., and KENNETH F. CAFFREY, JR., Appellants vs. HAMPDEN TOWNSHIP and HAMPDEN TOWNSHIP ZONING HEARING BOARD, Appellees • IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-2796 CIVIL TERM ANSWER OF HAMPDEN TOWNSHIP TO APPELLANTS' PETITION FOR STAY OF ENFORCEMENT OF DECISION OF THE HAMPDEN TOWNSHIP ZONING HEARING BOARD ORDER OF DECEMBER 6, 1995 AND RULE TO SHOW CAUSE DATED DECEMBER 28 1995 TO THE HONORABLE, THE JUDGES OF SAID COURT: AND NOW comes HAMPDEN TOWNSHIP ("Township") by its Attorneys, Snelbaker & Brenneman, P.C., and responds to Apellants' Petition for Stay of Enforcement of Decision and this Court's Rule to Show Cause issued December 28, 1995, (received via mail on January 3, 1996) as follows: 1. It is admitted that Appellants seek a stay of the Zoning Hearing Board's Order of December 6, 1995, but it is denied that they have any legal basis therefor. The Township opposes the Petition and requests your Honorable Court to dismiss the Petition, deny the stay of proceedings and vacate the Rule to Show Cause. 2. It is admitted that Appellants may seek a stay of the LAW OFFICES SNELBAKER 8c BRENNEMAN Zoning Hearing Board's Order, but it is denied that they have any legal basis therefor. 3. The content of paragraph 3 of the Petition is a conclusion of law to which no answer is required and, therefore, such content is deemed to be denied. It is not conceded that /~~ • Pennsylvania Public Utility Commission v. Process Gas Consumers Group is applicable to this proceeding. 4. The content of paragraph 4 of the Petition is a conclusion of law to which no answer is required and, therefore, such content is deemed to be denied. To the extent that such content contains averments of facts, the same are addressed in the remaining paragraphs of this Answer. 5. It is denied that such loss of license (if true) is not irreparable. On the contrary, Appellants or Caffrey Auto Supply can transfer the license to another but lawful location. After reasonable investigation, Township is without knowledge or information sufficient to form a belief as to the averment that the license would be lost if the stay is not granted; therefore, the averment is deemed to be denied and proof is demanded at any hearing on the Petition. 6. Admitted generally; however, by way of further answer, Township avers that Appellants apparently knew of such requirements when commencing their unlawful use of the subject premises, and proceeded at their risk in disregard, if not outright defiance, of Township's zoning regulations. 7. It is admitted that Appellants will not be allowed to maintain the sign or the supply of cars under the Zoning Hearing Board decision which reaffirms Township's continuing contention LAW OFFICES that Caffrey Auto Supply's use is unlawful. After reasonable SNELBAKER BRENNEMAN investigation, Township is without information or knowledge sufficient to form a belief as to the truth of the averment that -2- ~~7 PennDOT would permanently remove Appellants' (Caffrey Auto Supply's) license; therefore, the averment is deemed to be denied) and proof thereof is demanded at any hearing on the Petition. 8. After reasonable investigation, Township is without knowledge or information sufficient to form a belief as to the truth of the averment that the license would be unavailable if Appellants were successful; therefore, the averment is deemed to be denied and proof thereof is demanded at any hearing on the Petition. 9. It is denied that Township would not be harmed by continuing the unlawful use. On the contrary, Appellants' use ofd the premises is unlawful and in clear violation of the Township's) Zoning Ordinance. Such violation is harm per se. 10. While it is admitted that Township's officials were LAW OFFICES SNELBAKER BRENNEMAN unaware initially of certain uses, such lack of knowledge does not cure an unlawful condition. Therefore, the extent of Township's knowledge is irrelevant and impertinent and the averments relating thereto should be stricken from the Petition. 11. It is denied that Township agrees that Appellants' unlawful use is minimal. On the contrary, Appellants' use is unlawful and the degree of violation is irrelevant and should be stricken from the Petition. Whether or not a sign is visible from the public road or the number of cars parked in front is 10 or less is wholly irrelevant. The degree of visibility is not in~ issue. The use is unlawful regardless of the visibility of its physical attributes. Appellants' admission that their sign "is -3- JPG 148a CAFFREY AUTO SUPPLY, INC. and KENNETH F. CAFFREY, JR. , Appellants v. HAMPDEN TOWNSHIP and HAMPDEN TOWNSHIP ZONING HEARING BOARD, Appellees IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-2796 CIVIL TERM APPELLANTS' REPLY TO NEW MATTER OF HAMPDEN TOWNSHIP AS CONTAINED IN ITS ANSWER TO APPELLANTS' PETITION FOR STAY OF ENFORCEMENT 15. It is admitted that no verification was attached to the Petition. However, by Praecipe Mr. Caffrey's verification has been attached to the Petition. 16. Denied. Paragraph 16 is a conclusion of law to which no response is required. 17. Denied. Paragraph 17 is a conclusion of law to which no response is required. 19.5 • 149a LJ 18. Denied. Paragraph 18 is a conclusion of law to which no response is required. WHEREFORE, Caffrey Auto Supply, Inc. and Kenneth F. Caffrey, Jr. move this Honorable Court to grant the relief requested in their Petition. Date: ~ Z ~- ~ 6 Respectfully Submitted, ADLER &CLARAVAL B OBERT F. CLARAVAL, ES UIRE 125 Locust Street P.O. Box 11933 Harrisburg, PA 17108-1933 (717) 233-4780 Supreme Court ID# 19222 Attorney for Appellants ~q 150a VERIFICATION The language of the foregoing document is that of counsel and not necessarily my own; however, I have read the foregoing document and to the extent that it is based upon information that I have given to counsel, it is true and correct to the best of my knowledge, information, and belief; to the extent that the content of the foregoing document is that of counsel, I have relied upon counsel in making this verification. I understand that any false statements herein are made subject to the penalties of 18 Pa.C.S.A. §4904, relating to unsworn falsification to authorities. Date: ~ ~ KENNETH F. C Y, /~, CAFFREY AUTO SUPPLY, INC. and KENNETH F. CAFFREY, JR., Appellants v. HAMPDEN TOWNSHIP and HAMPDEN TOWNSHIP ZONING HEARING BOARD, Appellees 151a d IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-2796 CIVIL TERM ('ERTIFICATE OF SERVICE I hereby certify that I have this day served a true and correct copy of the attached Appellants' Reply to New Matter of Hampden Township as Contained in its Answer to Appellants' Petition for Stay of Enforcement by first class mail, postage prepaid, addressed to the following persons: Richard C. Snelbaker, Esq. 44 West Main Street Mechanicsburg, PA 17055 (Attorney for Hampden Twp.) Date: ~~h ~~ ~~c~ John E. Slike, Esq. Saidis, Guido, Shuff & Masland 2109 Market Street Camp Hill, PA 17011-0737 (Attorneys for Zoning Hearing Board) ADLER & CLARAVAL DENISE I. WILLIAMS, Secretary For Robert F. Claraval ~~ ~'~ w=y -,~ t '? -=' - { c: , .- ,, t~--~ .- `.5 .i,..,. ,,.~ ~ - 1 _1 7~ ~ ' } -~ ~1`t . ' : 'tl f ~ ~ ,'. r ` ~ ~~~ ~~ •. • CAFFREY AUTO SUPPLY, INC. and KENNETH F. CAFFREY, JR. , Appellants v. HAMPDEN TOWNSHIP and HAMPDEN TOWNSHIP ZONING HEARING BOARD, Appeh_ees TO THE PROTHONOTARY: IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-2796 CIVIL TERM PRAECIPE Please attach the enclosed verification executed by Appellant Kenneth F. Caffrey, Jr. to Appellants' Petition for Stay of Enforcement in the above matter. Date: 2 Respectfully submitted, ADLER &CLARAVAL By ROBERT .CLARAVAL, ESQUIRE 125 Locust Street P.O. Box 11933 Harrisburg, PA 17108-1933 (717) 233-4780 Supreme Court ID# 19222 Attorneys for Appellants ~~ VERIFICATION The language of the foregoing document is that of counsel and not necessarily my own; however, I have read the foregoing document and to the extent that it is based upon information that I have given to counsel, it is true and correct to the best of my knowledge, information, and belief; to the extent that the content of the foregoing document is that of counsel, I have relied upon counsel in making this verification. I understand that any false statements herein are made subject to the penalties of 18 Pa.C.S.A. §4904, relating to unsworn falsification to authorities. Date: ~ ~ ~ KENNETH F. C Y, ypl ,., ° .-,} -n ~ ? ve, ,. _.~~ , ;7 rj~ Y~ ~ ~~ ~.~ ~. • y`I ~/ [ CAFFREY AUTO SUPPLY INC., IN THE COURT OF COMMON PLEAS OF and KENNETH F. CAFFREY, JR. CUMBERLAND COUNTY, PENNSYLVANIA Appellants vs. CIVIL ACTION -LAW HAMPDEN TOWNSHIP and HAMPDEN TOWNSHIP ZONING HEARING BOARD, Appellees NO. 95-7280 CIVIL TERM CAFFREY AUTO SUPPLY INC., IN THE COURT OF COMMON PLEAS OF and KENNETH F. CAFFREY, JR. CUMBERLAND COUNTY, PENNSYLVANIA Appellants vs. lIT TTT AND NOW, this 2.,Y'~. day of February, 1996, the petition of Caffrey Auto CIVIL ACTION -LAW HAMPDEN TOWNSHIP and HAMPDEN TOWNSHIP ZONING HEARING BOARD, Appellees NO. 95-2796 CIVIL TERM Supply, Inc. and Kenneth F. Caffrey, Jr. to consolidate No. 95-7280 and No. 95-2796, is GRANTED. On 95-7280 appellant shall file a brief in chambers within fifteen (15) days of this date. Appellee shall file a response brief in chambers within thirty (30) days of this date. That case shall be decided without oral argument. The stay issued by the Honorable J. Wesley Oler, Jr. on January 31, 1996, at No. 95-7280 is CONTINUED. The hearing scheduled by Judge Oler for April 18, 1996, is CANCELLED. This judge will decide the issues raised at both 95-7280 and 95-2796 and the stay shall remain in ~~~ ~~ ~, ~. - ~~` ~=.' ~ -- - t.._, .;: ~:___._ .. ~_" `'- , ~~, -- ~ ~ full force until a resolution of those issues. Robert F. Claraval, Esquire For the Appellants Richard C. Snelbaker, Esquire For Hampden Township :rlm > ,~ BY THE COiJR'~; r ~~ Edgar B. Bayley, J. p. 0 z~ CAFFREY AUTO SUPPLY, INC AND KENNETH F. CAFFREY, JR., APPELLANTS 31~/q~, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. HAMPDEN TOWNSHIP AND HAMPDEN TOWNSHIP ZONING HEARING BOARD, APPELLEES 95-2796 CIVIL TERM ~~ 95-7280 CIVIL TERM IN RE: LAND USE APPEALS BEFORE BAYLEY. J. ORDER OF COURT AND NOW, this 2 b day of March, 1996, the order of the Hampden Township Zoning Hearing Board dated May 5, 1995, which sustained the cease and desist order issued by the Hampden Township Zoning Officer on January 17, 1995, IS REVERSED. By the Court, Robert F. Claraval, Esquire u,y~ For Appellants L~Yr k~ Richard C. Snelbaker, Esquire ~~. For Hampden Township ~ ,, yi'rJ Saidis, Guido, Shuff & Masland For Hampden Township Zoning Hearing Board saa ~~ ~; ,.~ . .. -.. ti ! CAFFREY AUTO SUPPLY, INC. AND KENNETH F. CAFFREY, JR., APPELLANTS V. • IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HAMPDEN TOWNSHIP AND HAMPDEN TOWNSHIP ZONING : HEARING BOARD, 95-2796 CIVIL TERM APPELLEES : 95-7280 CIVIL TERM IN RE: LAND USE APPEALS BEFORE BAYLEY, J. OPINION AND ORDER OF COURT BAYLEY, J., March 26, 1996:-- Kenneth F. Caffrey, Jr., is President of Caffrey Auto Supply, Inc., (CAS). He and his wife are the sole owners of the corporation. CAS is located at 110 Sporting Hill Road, Hampden Township, about one-quarter mile from the Hampden Township Municipal Building. The business, which opened in 1987, is primarily involved in selling automotive supplies to wholesale and retail car dealerships. In 1987, pursuant to Chapter 27, Section 2109 of Hampden Township Zoning Ordinance 842, as revised, CAS obtained a Certificate of Use from the Township.' The property was zoned C-G Commercial General, and the permitted use in that zone as authorized by the Certificate was for the: 1. Section 2109(2) provides; No vacant land shall be occupied, used or changed in use, and no building or structure, hereafter erected or structurally altered, shall be occupied, used or changed in use, until a Certificate of Use shall have been regularly issued therefor by the Zoning Officer, or his duly appointed representative. • 95-2796 CIVIL TERM 95-7280 CIVIL TERM [s]ale, storage and distribution of auto parts and body shop supplies. Would have retail sales from counter, wholesale pick-up and delivery. CAS operates in a 27,000 square foot building. In January, 1992, CAS began selling automobiles retail. In August, 1992, it began selling automobiles wholesale. CAS obtained a required permit to sell vehicles from the Pennsylvania Department of Transportation in August, 1992, but did not reapply for a Certificate of Use from Hampden Township to use its property for that specific purpose.2 CAS continues to utilize its property for wholesaling automobiles, very limited retail sales, and its original business as authorized in its Certificate of Use. When CAS began selling cars in January, 1992, the zoning in Hampden Township where its property is located permitted the sale of automobiles. The current use of the property by CAS for the wholesaling of automobiles with very limited retail sales was an authorized use under Section 1203(17) of the Hampden Township Zoning Ordinance until Ordinance 84-2 was amended by Ordinance 93-20 enacted on December 7, 1993, and effective on December 8, 1993, when it was entered in the 2. Section 2109(4) of the Zoning Ordinance provides: A Certificate of Use for the use of occupancy of vacant land or for a change in the use of the land, or for a change in the use of an existing building, shall be applied for and issued before any such land shall be occupied or used, or such land or building changed in use, and shall be issued within fifteen (15) days after application has been made, provided such proposed use is in conformity with the provisions of this Chapter. -2- ~G 95-2796 CIVIL TERM 95-7280 CIVIL TERM Ordinance Book of the Township.3 The amendment deleted the C-G Commercial General zone classification and added a new Part 12.5 C-L Commercial-Limited zone. The sale of motor vehicles, retail or wholesale, is not permitted in a C-L Commercial Limited zone. The Hampden Township Zoning Officer sent a notice of violation to CAS on January 6, 1995, for selling vehicles on its property. He issued a cease and desist order on January 17, directing the termination of automobile sales. Caffrey and CAS filed an appeal and a hearing was held before the Hampden Township Zoning Hearing Board on April 5. On May 5, 1995, the Board dismissed the appeal. Caffrey and CAS then appealed to this court at 95-2796. The Zoning Officer testified at the hearing before the Board that he found out about the violation "a week, two weeks - I'm not sure honestly," before January 6, 1995. He learned of the violation from the Township Manager and some other staff. The Township Manager testified that he learned of the violation in "mid-December of 1994," from "a member of the Board of Commissioners." The record does not disclose when or how the Commissioner learned of the violation. Kenneth Caffrey testified that no application for an additional Certificate of Use was made because he did not realize one was required as he had obtained a Certificate of Use for his automotive supply business, and the sale of vehicles was a permitted use under the 3. 53 P.S. § 56502. -3- ~~~ ~ i 95-2796 CIVI L TERM 95-7280 CIVIL TERM C-G zone. Caffrey also testified that he was not aware that the zoning had changed until he received the cease and desist order. Section 2002 of the Hampden Township Zoning Ordinance provides: Continuation. The owner of the premises occupied by a lawful non-conforming use or building existing at the effective date of this Chapter shall, within one (1) year of the effective date of this Chapter, report to the Zoning Officer the information necessary for the registration of such non-conformance under Section 2007 of this Part, and shall secure a Certificate of Non-Conformance for the purpose of insuring to the owner the right to continue such non-conforming building or use. CAS never obtained a certificate of non-conformance following the change in zoning in December, 1993. Section 2007 of the zoning ordinance provides: The Zoning Officer shall identify and register all non- conforming uses and structures with due diligence. He shall maintain for that purpose a file, reflecting, for each non-conforming use of structure, the name and addresses of all persons having an ownership or promissory interest in the property, a description of the property, its location, its zoning classification, adetailed description of each non-conforming use and structure, the manner in which it is non- conforming, the date and a detailed description of each alternation, restoration, reconstruction, change, extension, and enlargement, the date of any abandonment or discontinuance, the date of issuance of each certificate of non-conformance and any other pertinent information. (Emphasis added). After the Zoning Hearing Board upheld the issuance of the cease and desist order, Caffrey and CAS applied for a certificate of use to sell automobiles on the premises. The Zoning Officer denied the application. Caffrey and CAS appealed and -4- ~~ / 95-2796 CIVI L TERM 95-7280 CIVIL TERM another hearing was held before the Hampden Township Zoning Hearing Board.4 On December 6, 1995, the Board entered an order upholding the refusal to issue a certificate. The Zoning Hearing Board set forth in a finding of fact that "The applicant was unaware that the zoning had changed so as to prohibit the sale of vehicles from his lot." The Board noted that: The troubling aspect of this case is that, at the time the applicant began his challenged use of the sale of the motor vehicles from his premises in 1992, it was a use permitted in the zone in which his property was located and he could have received a permit. If he had applied for a permit in 1992, a permit would have been issued and his continued use of the premises after the December 7, 1993 amendment would have been registered as a lawful nonconforming use. (Emphasis added). The Board then stated: The difficult question which the Board must decide is whether the applicant's failure to apply for a Certificate of Use (to which he was entitled) and his failure to register a nonconforming use in 1993 were ministerial acts which can be corrected by his belated application in September of 1995, or whether his failure to file a timely application effectively bars the door to the issuance of a permit as a nonconforming use for the continued sales of motor vehicles from the premises. (Emphasis added). Relying on Pfeffer v. Hopewell Township, 60 Pa. Commw. 399 (1981), the Board concluded that Caffrey is not entitled to the issuance of a certificate. Caffrey and CAS 4. No one has ever appeared before the Board in opposition to the sale of automobiles by CAS on its property, nor has anyone otherwise complained about that activity. -5- ~~ • • 95-2796 CIVIL TERM 95-7280 CIVIL TERM filed an appeal in this court at 95-7280, which was consolidated with the appeal at 95- 2796. As to the first question raised by the Zoning Hearing Board, Hampden Township, in its brief, argues that the failure of CAS to have a Certificate of Use for the sale of automobiles means that use of its premises before the change in zoning was illegal, and therefore it cannot form the basis for a legal non-conforming use. That is not the law of Pennsylvania. "Lapse in proper licensing in conformity with [a zoning ordinance] is [not] dispositive of the use's status so long as the use of the premises ...does not run afoul of a zoning restriction." McGeehan v. Zoning Hearing Board of Springfield Township, 45 Pa. Commw. 403 (1979), citing Hauser v. Borough of Catasauqua Zoning Hearing Board, 20 Pa. Commw. 313 (1975), and Commonwealth v. Cieslak, 179 Pa. Super. 441 (1955). Thus, the failure to have a Certificate of Use for the sale of automobiles, a lawful use by CAS of its premises under Ordinance 84-2, is not dispositive as to whether CAS may now continue those sales as anon-conforming use under Ordinance 93-20. As to the second question raised by the Zoning Hearing Board, and its reliance on Pfeffer v. Hopewell Township, supra, in that case a Township sued a landowner to enjoin the outdoor storage of used household appliances, bicycles, tractors and automobiles as a violation of the provisions of its zoning ordinance. The Commonwealth Court stated: -6- 2~ 95-2796 CIVIL TERM 95-7280 CIVIL TERM In Muncy Borough v. Stein, 440 Pa. 503, 507, 270 A.2d 213, 215 (1970), the court summarized the Budney rule as follows: As to the defense of nonconforming use, we held in Honey Brook and in Philadelphia v. Budney, 396 Pa. 87, 151 A.2d 780 (1959), that if the applicable zoning ordinance provides ... an administrative machinery by which the right to continue the nonconforming use might be determined that such a defense cannot be raised in an equity proceeding. See also Jonnet v. Bodick, 431 Pa. 59, 244 A.2d 751 (1968). We stated that such matters are to be heard exclusively by the administrative tribunals. Sections 406.8, 601.1, 601.2, and 601.7 of the Hopewell Township zoning ordinance provide for the registration of nonconforming uses and require the zoning officer to prepare and make available to landowner-applicants forms for the purpose of registration. The zoning officer testified that such forms were available but that the appellants never registered their sales yard. Having failed to avail themselves of the available administrative means of establishing that their nonconforming use was lawful, the appellants are barred from defending an action to require them to conform to the use regulation on this ground. (Emphasis added). In the case sub 'u~ dice, the Hampden Township Zoning Hearing Board has found, that if Caffrey and CAS "[h]ad applied for a permit in 1992, a permit would have been issued and his continued use of the premises after the December 7, 1993 amendment would have been registered as anon-conforming use." Pfeffer v. Hopewell Township, supra, which was not a land use appeal, is not authority for the conclusion reached by the Zoning Hearing Board that CAS cannot sell automobiles on its premises as a lawful non-conforming use. Unlike the ordinance of Hopewell Township that simply required the zoning officer to prepare and make available to the landowner forms for the purpose of registering anon-conforming use, Section 2007 of -7- zrl • • 95-2796 CIVIL TERM 95-7280 CIVI L TERM the Hampden Township zoning ordinance places a duty on the zoning officer, in that he "[s]hall identify and register all nonconforming uses and structures with due diligence." The word "shall" in Section 2007 places an affirmative duty on the zoning officer to identify and register all non-conforming uses and structures with due diligence. Section 2007 is part of the Hampden Township zoning ordinance by virtue of the Municipalities Planning Code (MPC) at 53 P.S. Section 10613, which provides in a 1988 amendment: Zoning ordinances may contain provisions requiring the zoning officer to identify and register nonconforming uses, structures and lots, together with the reasons why the zoning officer identified them as nonconformities. (Emphasis added). Before the amendment, Section 10613 mandated such a provision in local ordinances, as the pre-1988 statute provided: "Zoning ordinances shall contain provisions requiring the zoning officer to identify and register non-conforming uses and non-conforming structures." (Emphasis added). Hampden Township did not delete its requirement, as it could have after the 1988 amendment, which mandates in Section 2007 that the Zoning Officer "shall identify and register all non-conforming uses and structures with due diligence." Had the Zoning Officer performed his duty under Section 2007, CAS through Caffrey, whom the Zoning Hearing Board specifically found was unaware of the zoning change that prohibited the sale of vehicles from his lot, and therefore did not register anon-conforming use with the Township under Section 2002 of the zoning ordinance, would now administratively -8- 2% 95-2796 CIVIL TERM 95-7280 CIVI L TERM have a registered non-conforming use. The Township, in its brief, after offering that, "There are no requirements for notifying individual land users at the time of the change of zoning," sets forth that the duty imposed under Section 2007 of the ordinance, "[i]s on the user to seek recording -- not the Township to seek out and record." The Township states: This simply means that the Zoning Officer must record promptly any lawful non-conforming use. It does not say that he must constantly police the municipality to discover such uses. Any such interpretation flies in the face of simply [sic] reasonableness. In light of the requirement in Section 2007 that "The Zoning Officer shall identify and register all nonconforming uses and structures with due diligence," that argument is clearly incorrect, especially since the Township could have amended its ordinance to delete the mandatory requirement on its zoning officer following the amendment to Section 10613 of the MPC in 1988. The Township now maintains that CAS was required to register its non-conforming use under Section 2002 of the zoning ordinance, while on the other hand it disavows the mandated responsibility of its zoning officer under Section 2007 to do the same with due diligence. This reminds us of the saying of Lord Kenyon, that a man shall not be permitted to blow hot and cold with reference to the same transaction, or insist, at different times, on the truth of each of two conflicting allegations according to the promptings of his own private interest.5 Besides, Section 2002 of the zoning ordinance only provides that, 5. See, Broom's Legal Maxims, 103 (10th ed. 1939}. -9- 2/ • • 95-2796 CIVIL TERM 95-7280 CIVIL TERM "The owner of the premises occupied by a lawful non-conforming use or building existing at the effective date of this Chapter shall, within one (1) year of the effective date of this Chapter, report to the Zoning Officer the information necessary for the registration of such non-conformance under Section 2007 of this Part ...." The effective date of Chapter 27 at the inception of Ordinance 84-2, was March 29, 1984. Section 2002 does not apply to the non-conforming use of CAS which was created by operation of law as a result of the 1993 zoning amendment which deleted the C-G Commercial General Zone in the 1984 ordinance and added a new Part 12.5, C-L Commercial-Limited zone in Ordinance 93-20 effective December 8, 1993. Additionally, the registration by a property owner of anon-conforming use under Section 2002 is only "for the purpose of ensuring the owner the right to continue such non-conforming building or use." Registration ensures an owner of the right to continue such non-conforming building or use; the statute does not prohibit an owner from otherwise establishing a lawful non-conforming use. CAS has otherwise established its non-conformance in this case, as the Zoning Hearing Board concluded that: "[a]t the time the applicant began his challenged use of the sale of motor vehicles from his premises in 1992, it was a use permitted in the zone...." In Appeal of Suburban General Hospital, 48 Pa. Commw. 273 (1980), a hospital utilized part of its property for landing helicopters in medical emergency cases before that use was prohibited by an amendment to the East Norriton Township zoning -10- 2 ~. • • 95-2796 CIVIL TERM 95-7280 CIVIL TERM ordinance. The zoning ordinance provided that an unregistered non-conforming use becomes a violation of its zoning ordinance. The hospital did not register its non- conforming use. The Commonwealth Court found that the lack of registration of the non-conforming use did not constitute an abandonment by the hospital of that use, "[a]nd Section 613 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10613, does not mandate such a result." Since the hospital had established the non-conformance of part of its property for helicopter landings in medical emergency cases, the Commonwealth Court concluded "[t]hat the hospital has established anon-conforming use right." (Emphasis added). CAS has done the same in the present case even though, as in Suburban General Hospital, its non-conforming use is not registered. Thus, CAS may continue wholesaling and retailing automobiles on its properly as it has since 1992. It is the zoning officer's responsibility to register the non-conforming use now that the zoning has changed, although the due diligence required by Section 2007 is a little late. Accordingly, we will reverse the order of the Zoning Hearing Board that upheld the cease and desist order issued by the Zoning Officer on January 17, 1995. The application of Caffrey and CAS for a Certificate of Use is moot because such a certificate, under Section 2109(4) of the Zoning Ordinance, is only required when the "proposed use is in conformity with provisions of this Chapter [27]." The sale of automobiles by CAS on its property is not in conformity with the Chapter as amended in Ordinance 93-20; rather, the use is a legal non-conforming use established before -11- ZI • • 95-2796 CIVIL TERM 95-7280 CIVIL TERM the enactment of the amendment. ORDER OF COURT AND NOW, this ~ 6 day of March, 1996, the order of the Hampden Township Zoning Hearing Board dated May 5, 1995, which sustained the cease and desist order issued by the Hampden Township Zoning Officer on January 17, 1995, IS REVERSED. the Court, ,~ Edgar B. Bayley, J. Robert F. Claraval, Esquire For Appellants Richard C. Snelbaker, Esquire For Hampden Township Saidis, Guido, Shuff & Masland For Hampden Township Zoning Hearing Board saa -12- ~~ CAFFREY AUTO SUPPLY, INC. AND KENNETH F. CAFFREY, JR., Appellants v. HAMPDEN TOWNSHIP AND HAMPDEN TOWNSHIP ZONING HEARING BOARD, Appellees NOTICE OF APPEAL Notice is hereby given that HAMPDEN TOWNSHIP, an Appellee inl LAW OFFICES SNELBAKER BC BRENNEMAN the above captioned land use appeal, hereby appeals to the Commonwealth Court of Pennsylvania from the Order entered in this matter on March 26, 1996. The Order was entered in both of the above referenced actions/appeals after consolidation by the Court. Said Order has been entered in the dockets as evidenced by the attached copies of docket entries. Dated: April 18 , 1996 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 95-2796 CIVIL TERM ~~ 95-7280 CIVIL TERM SNELB NEMAN, P.C. By Richard C. Snelbaker Attorney Registration No. 06355 44 West Main Street Mechanicsburg, PA 17055-0318 (717) 697-8528 Attorneys for Hampden Township zr~ PYS510 Cumber nd County Prothonotary's ice Page 1 evil Case Inquir 1995-02796 CAFFREY AUTO SLY INC ET'AL fVS~ HAMPDEN WNSHIP ET .AL . Reference No. Filed........: 5/23/1995 Case Ty e.....~ APPEAL - MOOC Time. .... 3.11 Judgmen~..... Execution Date 0/00/0000 Judge Assigned: BAYLEY EDGAR B Sat/Dis/Gntd.. 0/00/0000 Jury Trial.... Higher Court 1 Hi~her Court 2 General Index Attorney Info CAFFREY AUTO SUPPLY INC APPELLANT CLARAVAL ROBERT F 110 SPORTING HILL ROAD MECHANICSBURG PA 17055 CAFFREY KENNETH F JR APPELLANT CLARAVAL ROBERT F HAMPDEN TOWNSHIP APPELLEE SNELBAKER RICHARD 230 SPORTING HILL ROAD MECHANICSBURG PA 17055 HAMPDEN TOWNSHIP ZONING APPELLEE HEARING BOARD 230 SPORTING HILL ROAD MECHANICSBURG PA 17055 ******************************************************************************* * Date Entries ******************************************************************************* 05/23/95 APPEAL FROM DECISION OF ZONING HEARING BOARD WRIT OF CERTIORARI ISSUED 05/26/95 ORDER - IN RE APPELLANTS' PETITION FOR STAY OF ENFORCEMENT - RULE ISSUED RETURNABLE 20 DAYS AFTER SERVICE - BY JUDGE KEVIN A HESS - NOTICE GIVEN 5/26/95 06/14/95 PRAECIPE TO ENTER APPEARANCE AND INTERVENE ON BEHALF OF HAMPDEN TOWNSHIP BY RICHARD C SNELBAKER ES 06/14/95 ANSWER OF HAMPDEN TOWNSHIP TO APPE LANTS' PETITION FOR STAY OF ENFORCEMENT OF DECISION OF THE HAMPDEN TOWNSHIP ZONING HEARING BOARD ORDER OF MAY 5 1995 AND RULE TO SHOW CAUSE DATED MAY 26,1995 06/22/95 APPLANTS' REPLY TO N~W MATTER OF HAMPDEN TOWNSHIP 06/22/95 VERIFICATION 08/18/95 HAMPDEN TOWNSHIP RECORDS 11/02/95 PRAECIPE FOR LISTING CASE FOR ARGUMENT BY RICHARD C SNELBAKER ESQ 11/13/95 MOTION TO STRIKE LAND USE APPEAL FROM ARGUMENT COURT 11/14/95 MOTION TO STRIKE LAND USE APPEAL FROM ARGUMENT COURT 11/20/95 ORDER - DATED 11/20/95 - IN RE MOTION TO STRIKE APPEAL FROM ARGUMENT COURT - RULE ISSUED ON APPELLEES RETURNABLE 7 DAYS AFTER SERVICE - BY KEVIN A HESS J - NOTICE MAILED 11/21/95 11/27/95 ANSWER OF APPELLE HAMPDEN TOWNSHIP TO APPELLANTS' MOTION TO STRIKE LAND USE APPEAL FROM ARGUMENT COURT AND RULE TO SHOW CAUSE ISSUED NOVEMBER 20 1995. 11/28/95 ORDER - DAT~D 11/28/95 - IN RE MOTION TO STRIKE APPEAL FROM ARGUMENT COURT - DENIED - BY KEVIN A HESS J -COPIES MAILED 11/28/95 12/01/95 APPELLANTS' REPLY TO NEW MATTER CONTAINED IN HAMPDEN TOWNSHIP'S ANSWER TO MOTION TO STRIKE LAND USE APPEAL FROM ARGUMENT COURT 01/11/96 ANSWER OF HAMPDEN TOWNSHIP TO APPELLANTS' PETITION FOR STAY OF ENFORCEMENT OF DECISION OF THE HAMPDEN TOWNSHIP ZONING HEARING BOARD ORDER OF DECEMBER 6 1995 AND RULE TO SHOW CAUSE DATED DECEMBER 28 1995 01/18/96 ORIGINAL APPLICATION FOR REVIEW OF ZONING OFFICER'S DECISION DOCUMENTS RELATING TO NOTICE OF HEARING ORIGINAL RECORD AND EXHIBITS DECISION OF THE ZONING HEARING BOARD 01/24/96 APPELLANTS' REPLY TO NEW MATTER OF HAMPDEN TOWNSHIP AS CONTAINED IN ITS ANSWER TO APPELLANTS' PETITION FOR STAY OF ENFORCEMENT 01/24/96 PRAECIPE TO ATTACH VERIFICATION TO APPELLANTS' PETITION FOR STAY OF ENFORCEMENT BY ROBERT F CLARAVAL ES 02/02/96 ORDER - DATED 2/2/96 - PETITION TO ONSOLIDATE NO 95-7280 AND NO 1%31/96 IS CONTINUED STHEARINGESCHEDU~EDRBYLJUDGEEOLER 4/18/96 ~S CANCELLED - BY EDGAR B BAYLEY J - COPIES MAILED 2/2/96 03/26/96 OPINION AND ORDER OF COURT - DATED 3/26/96 - IN RE LAND USE APPEALS ORDER OF THE HAMPDEN TWP ZONING HEARING BOARD IS REVERSED - BY EDGAR B BAYLEY J - COPIERS MAILED 3/26/96 * Fees & Debits Escrow Information Beg Bal Pymts/Adj End Bal z~ 'PYS510 Cumber nd County- pr.othonotary's ice Page 2 evil Case,Inquir 1995-02796 CAFFREY AUTO SLY INC ET AL ~VS~ HAMPDEN~WNSHIP ET .AL Reference No. Filed........: 5/23/1995 Case Ty e..... APPEAL - MISC Time. .... 3.11 Judgmen~......i 00 Execution Date 0/00/0000 Judge Assigned: BAYLEY EDGAR B Sat/Dis/Gntd.. 0/00/0000 Juryy Trial.... HigFier Court 1 Hi~her Court 2 APPEAL MISC 35.00 35.00 .00 TAX ON APPEAL .50 .50 .00 SETTLEMENT 5.00 5.00 .00 JCP FEE 5.00 5.00 .00 ------------------------ ------------ 45.50 45.50 00 * End of Case Information ****************************************************************************** TIRU'E CC~~Y FROM RECOR® 6~ Ts~timony v~ttsreaf,l Mere utrto set rte fwd ~a;x~ t6oe se~a4 of ;mid Court at Car~s~le, Pa. Prothonotary ~~~ ~ vANIA `r - ' IN TH~Oi"iMONWEALTH COURT OF PENI~L NOTICE OF DOCKETING APPEAL ~ Docket No: 1003 C.D. 1996 Filed Date: 04/18/9b Re: HAMPDEN TOWNSHIP v. CAFFREY AUTO et al. Lower Court No.: 95-2796Civ A Notice of Appeal, a copy of which is enclosed, from an order o your court has been docketed in the Commonwealth Court of Pennsylvani The docketwealthrCourthdocketonumberhmustrbeyoneallrcorrespondencetic The Common and documents filed with the Court. Under Chapter 19 of the Pennsylvania Rules of Appellate Procedur the Notice of Appeal has the effect of directing the Court to transmi the certified record in the matter to the Prothonotary of the Commonwealth Gourt. the complete record, including the opinion of the trial judge, should be forwarded to the Commonwealth Court within forty (40) days of the date of filing of the Notice of Appeal. Do not transmit a partial record. Pa. R.A.P. 1921 to 1933 provides the standards for preparation, certification and transmission of the record. The address to which the Court is to transmit the record is set forth on page 2 of this notice. NOTICE TO COUNSEL A copy of this notice is being sent to all parties or counsel indicated on the proof of service accompanying the Notice of Appeal. The appearance of all counsel has been entered on the record in the Commonwealth Court. Counsel has thirty {30} days from the date of filing of the Notice of Appeal to file a praecipe to withdraw their appearance pursuant to Pa. R.A.P. 907(b). Appellant or Appellant's attornex should review the record of t trial court, in order to insure that it is complete, prior to certification to this Court. (Note: A copy of the Zoning Ordinance must accompany records in Zoning Appeal cases}, The addresses to which you are to transmit documents to this G~ are set forth on Page 2 of this Notice. If you have special needs, please contact this court in writir. soon as possible. Lower Court Judge: Honorable Edgar Bayley Jr. Attorney: Richard C. Snelbaker Attorney: Robert F. Claraval Notices Exit: 04/25/9& Prothonotary ~u~ress all _written communicat:~ons to: Office of the Prothonotary Commonwealth Court of Pennsylvania P. 0. Box 21730 Harrisburg, PA 17108 Filings may be made in person at the fallowing address (except on Saturdays, Sundays and legal Holidays observed by Pennsylvania Courts) between 9:00 a.:n. and 4:00 p.m. Office of the Chief Clerk Cor,:rconwealth Court of Pennsylvania Room 624 Sixth Floor South Office Building Harrisburg, PA 17120 (7I?) 787-5884 Pleadings and similar papers (but not panerbooks or cert~.fied records) may also be filed in person cnl at: Office of the Prothonotary Cor,L^~onweaith Court of Pennsylvania Filing Office Suite 990 The Widener Building One South Penn Square Philadelphia, PA 19107 (ZIS~ 550-5742 Tre hours of the Philadelphia Filing Office are 9: 00 a.m. to 4: JO p..~a. Under PA. R.A.P. 3702, wr_ts or other process issuing out of the Commonwealth Court shall exit only from the Harrisburg Off ice and shall be returnable thereto. ~L( CAFFREY AUTO SUPPLY, INC. . AND KENNETH F. CAFFREY, JR., Appellants v. HAMPDEN TOWNSHIP AND HAMPDEN TOWNSHIP ZONING HEARING BOARD, Appellees IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVAATIA /o0 3 ~ ~iyv 95-2796 CIVIL TERM 95-7280 CIVIL TERM NOTICE OF APPEAL Notice is hereby given that HAMPDEN TOWNSHIP, an Appellee in the above captioned land use appeal, hereby appeals to the Commonwealth Court of Pennsylvania from the Order entered in this matter on March 26, 1996. The Order was entered in both of the above referenced actionsJappeals after consolidation by the Court. Said Order has been entered in the dockets as evidenced by the attached copies of docket entries. SNELB ~ c NEMAN, P.C. By Richard C. Snelbaker Attorney iiegistration No. 06355 44 West Main Street Mechanicsburg, PA 17055-0318 (71?) 697-8528 Attorneys for Hampden Township OFFICES :L BAKER 8' J N EMAN Dated: April 18 , 1996 '.,...~ ~ ~4:~. - 1 2L N a T Z C E The Common•~realth Court is instituting a new service in order to speed copies of orders and opinions to attorneys litigating cases in this Court. We will FAX copies of all orders and opinions in a given case to counsel upon written request and the payment of a $S~•~Q service charge. , If you wish to avail yourself to this service, please fill out and return the informat:.on be? ow and attach a chec?t made payable to the Camnonwealth Court of Pennsylvania in the amount of $50.0. BE SURE TO INC:.UDE THE DOC:{ET NUMBER OF THE CASE. I desire to have all orders or opinions in the below capz_oned case faxed to me. Nar..e FAX Number Esq. Dacke~ Number Caption Signature ;? ? ~ • • ' As of gugust 15, 1994 ~BR OF ~P:CRS F08 FIISHG C02~OI~tWBgL'i'8 COURT ORIGINAL AND ONE COPY Motion for Extension (2nd - $10., 3rd ~ s'uhsequent - $25.} Praecipes Motion to DismissrQuash Motion for gupersedeas Preliminaz^~ Objections All Pre-Trial Motions ORIGINAL AND TWO COP388 Petition for Review - $55• Petition for Permission to Appeal - $b3. (C.D.s) Petition far Review or Appe~s Nunc Pro Tunc - 35- 1311tb) Petition for Review - S55• Petition far Reaoasideration of Single Judge orders - Original. Jurisdiction - $15. Exceptions ORI_ ;2~4I+ ANn FIFTEEN COPI88 Petitioa for Reconsideratioa of Single Judge Orders - Appellate Jurisdiction - $13. Motion to Publish Opinion Pet:~tion for g,eargument En Bann - $t=• FIFTEEN COPIES Bxiefs Memoranda of Law BIGHT coPlFs Reproduced Records ~ ~ L1-