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HomeMy WebLinkAbout98-0252 civilJOSEPH A. BRESKI AND : NANCY BRESKI, : APPELLANTS : : V. : : HOPEWELL TOWNSHIP : ZONING HEARING BOARD, : APPELLEE : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 98-0252 CIVIL TERM IN RE: APPEAL FROM A DECISION OF THE HOPEWELL TOWNSHIP ZONING HEARING BOARD BEFORE BAYLEY, J. AND GUIDO, J. OPINION AND ORDER OF COURT BAYLEY, J., March 5, 1999:-- Appellants, Joseph A. Breski and Nancy Breski, are the owners of ten and one- half acres in Hopewell Township. The property is located in an Agriculture District under the Hopewell Township Zoning Ordinance that was enacted on April 1, 1991. The Zoning Ordinance provides that no unlicensed, inoperable or junk motor vehicles or substantial remnants thereof shall be parked, stored, placed, or allowed to remain on' any lot within any zoning district for a period in excess of thirty days outside of a completely enclosed building or structure. The Breskis store unlicensed and inoperable vehicles that they are restoring outside on their property for periods well in excess of thirty days. The Breskis, pursuant to the Zoning Ordinance, filed a request with appellee, Hopewell Township Zoning Hearing Board, seeking clarification of the use of their property as a nonconforming use for the purpose of storing their vehicles outside during restoration. On December 17, 1997, the Zoning Hearing Board filed a decision 98-0252 CIVIL TERM in which it concluded: [The Breskis'] storage on their property outside of a completely enclosed building or structure of a maximum of six (6) unlicensed, inoperable and/or junk motor vehicles constitutes a nonconforming use. Storage of more than six (6) unlicensed, inoperable or junk motor vehicles on [the Breskis'] property for a period in excess of thirty (30) days outside of a completely enclosed building or structure would constitute a violation of the zoning ordinance. The Breskis filed the within appeal maintaining that the Zoning Hearing Board erred in determining that they not be allowed to store twelve such vehicles on their property, and in addition store an unlicensed, operable 1978 Jeep Wagoneer used for plowing snow, and an unlicensed, operable dump truck used in their construction business. The issues were briefed and argued on March 3, 1999. Our scope of review is limited to determining if the Hopewell Township Zoning Hearing Board committed an error of law, and whether its findings of fact are supported by substantial evidence; Nascone v. Ross Township Zoning Hearing Board, 81 Pa. Commw. 482 (1984). The Board was the judge of the credibility of the witnesses and the weight to be given to their testimony. Roseberry Life Insurance Company v. Zoning Hearing Board of City of MeKeesport, 664 A.2d 688 (Pa. Commw. 1995). Substantial evidence is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550 (1983). Appellant and appellee now stipulate that the substantial evidence in the record -2- 98-0252 CIVIL TERM establishes a nonconforming use by the Breskis for outside storage on their property of seven unlicensed, inoperable and/or junk motor vehicles rather than the six vehicles set by the Zoning Board's decision of December 17, 1997. Appellant still maintains, and the Board disagrees, that the number of such vehicles should be eight, not seven. A resolution of that issue involves whether appellants were storing a 1965 Chevrolet SuperSport convertible on their property when the Hopewell Township Zoning Ordinance was enacted on April 1, 1991. Unlike Joseph Breski's unequivocal testimony that he was storing other specific vehicles on the property on April 1, 1991, which testimony the Board accepted in determining that there was a nonconforming use, his testimony as to the 1965 Chevrolet SuperSport convertible was equivocal: QUESTION: The '65 Chevy SuperSport convertible, did you have it in April? MR. BRESKI: No, that's not operational. QUESTION: Did you have it in April of '917 MR. BRESKI: I would say I had it in '91. If I had it in April -- you know, I could have gotten it in March. I could have gotten it in June. I don't really remember. I had it in the early 90s. (Emphasis added.) The landowner has the burden of establishing a nonconforming use. Llewellyn's Mobile Home Court, Inc. v. Springfield Township Zoning Hearing Board, 86 Pa. Commw. 567 (1984). The equivocal testimony as to whether there was a 1965 Chevrolet SuperSport convertible stored on appellants' property when the Zoning Ordinance was enacted on April 1, 1991, does not constitute such relevant evidence as a reasonable mind might accept as adequate to support that conclusion. -3- 98-0252 CIVIL TERM Accordingly, the Zoning Hearing Board did not err when it found that only seven rather than eight vehicles were stored on the Breskis' property as of April 1, 1991. Therefore, we reject appellants' claim that the nonconforming use should be for eight vehicles. Based on the parties' stipulation, we will reverse the Zoning Hearing Board and enter an order providing that the number of vehicles constituting appellants' nonconforming use is seven, not six. ORDER OF COURT AND NOW, this ~ day of March, 1999: (1) Based on the stipulation of the parties, the decision of the Zoning Hearing Board of Hopewell Township, IS REVERSED. (2) The Breskis' storage on their property outside of a completely enclosed building or structure of a maximum of seven (7) unlicensed, inoperable and/or junk motor vehicles constitutes a nonconforming use. (3) Storage of more than seven (7) unlicensed, inoperable or junk motor vehicles on the Breskis' property for a period in excess of thirty (30) days outside of a completely enclosed building or structure would constitute a violation of the zoning ordinance. -4- 98-0252 CIVIL TERM Richard L. Webber, Jr., Esquire For the Appellants By the Court,~ //2 Edgar B. Michael R. Rundle, Esquire For Appellee :saa -5-