HomeMy WebLinkAbout94-3422 EquityTOWNSHIP OF SILVER SPRING,
Plaintiff
V®
GREGG R. CARIGNAN,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
NO. 94-3422 EQUITY TERM
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
Oler, J., February 15, 1996.
In this equity case, Defendant has appealed to the
Commonwealth Court from an order denying a motion for post-trial
relief and entering as a final decree an injunction that directed
him to remove a large accumulation of junk from the yard of his
residence. The decree, in pertinent part, provided as follows:
[U]pon consideration of Plaintiff's
amended complaint, following an equity trial
and for the reasons stated in the accompanying
Opinion, the court finds in favor of Plaintiff
and against Defendant, and Defendant is
ENJOINED, not later than sixty days hereafter,
from continuing to store junk, including
disabled vehicles and trailers as described in
the Opinion, on the grounds of the premises
occupied by him .... ~
This final decree had initially been contained in an
adjudication as a decree nisi.2 The adjudication was the subject
of Defendant's motion for post-trial relief.3
Defendant's motion for post-trial relief contained over fifty
~ See Decree Nisi (October 19, 1995), entered as final
decree, December 11, 1995.
2 See Pa. R.C.P. 1517(a) (equity adjudication to contain
decree nisi).
The adjudication was issued on October 19, 1995.
3 Defendant's motion for post-trial relief was filed on
October 30, 1995.
NO. 94-3422 EQUITY TERM
assignments of error. Most of these assignments are being pursued
on appeal.4 The assignments of error being pursued relate to
findings in the adjudication which allegedly should not have been
made because they were unsupported by the record, findings which
allegedly should have been made but were not, and conclusions which
allegedly should not have been arrived at.s In the latter category
are said to be the following:
A. That the Plaintiff met its burden of
showing that the condition of Defendant's
property constituted a public nuisance as
opposed to a private nuisance at most.
B. That violation of ordinances
constitutes any basis for the relief requested
by the Plaintiff.
C. That materials on Defendant's
property constitute a "junk yard" as defined
in Plaintiff's ordinances.
D. That prior violations of ordinances
constitute a basis or evidence of a public
nuisance.
E. That the Defendant's use of the
property was not a legitimate business use
protected by the zoning of the property and
~previous use of the property.6
In denying Defendant's motion for post-trial relief, based in
part upon allegedly erroneous findings of fact, this court was
Defendant's Statement of Matters Complained of Pursuant to
Pa.R.A.P. 1925(b), filed January 25, 1996.
Id.
Id.
NO. 94-3422 EQUITY TERM
cognizant of the rule that a chancellor's findings of fact have all
the force and effect of a jury's verdict. Snyder v. Gravell,
Pa. Super. __, , 666 A.2d 341, 343 (1995); Chartier's Valley
Sch. Dist. v. Board of Property Assessment, 94 Pa. Commw. 4, 11,
503 A.2d 66, 70 (1985), citing Glenn v. Trees, 276 Pa. 165, 167-68,
120 A. 109, 111 (1923). In this regard, the adjudication which
contained the decree nisi included a detailed statement of facts in
narrative form, with a reference to the witness or other source in
the record relied upon for each finding made. (In a copy of the
adjudication attached hereto, references to testimony which
initially could be made only generally due to an absence of some
parts of the transcript have now been made specific.) Because of
the support in the record for the chancellor's statement of facts,
the court is unable to agree with Defendant that post-trial relief
was warranted due to erroneous findings.
With respect to the alleged failure of the chancellor to make
certain additional findings - e.g., that various drums on
Defendant's property were at times employed to store used motor oil
and hydraulic fluid with which Defendant heated his residence - 7
it may be noted that the trial in this case consumed all or
portions of four days, included a view of the premises and the
introduction of more than 50 exhibits, and resulted in a 17-page
7 N.T. 210-11 (testimony of Defendant Carignan) (August 11,
1995).
NO. 94-3422 EQUITY TERM
adjudication containing numerous footnotes. Although it is
undoubtedly true that more findings of fact could have been
included in the adjudication, the court made those findings which
it believed were most pertinent to the questions of whether the
property occupied by Defendant was in violation of Plaintiff's
junk/junked-vehicle ordinance and/or its zoning ordinance, whether
the condition represented a public nuisance, and whether injunctive
relief was appropriate. The additional findings proposed by
Defendant in his motion for post-trial relief were, in the court's
view, either not material in the sense of offering the prospect of
a different result or not established to the satisfaction of the
trier of fact, or both.
With respect to allegedly erroneous Conclusions arrived at by
the chancellor, a review of the adjudication indicates that the
issues raised by Defendant were addressed therein, with the legal
basis and rationale for the grant of injunctive relief being set
forth in detail. For these reasons, reference is made in this
opinion written pursuant to Pennsylvania Rule of Appellate
Procedure 1925(a) (requirement of statement of reasons for order
below) to the adjudication of the chancellor dated December 11,
1995, and attached hereto.
Richard C. Snelbaker, Esq.
44 West Main Street
P.O. Box 318
Mechanicsburg, PA 17055
Attorney for Plaintiff
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NO. 94-3422 EQUITY TERM
Stephen R. Portko, Esq.
101 Office Center, Suite A
101 South U.S. Route 15
Dillsburg, PA 17019
Attorney for Defendant
TOWNSHIP OF SILVER SPRING,
Plaintiff
GREGG R. CARIGNAN,
Defendant
· IN THE COURT OF COMMON PLEAS OF
· CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
NO. 94 - 3422 EQUITY TERM
IN RE: ADJUDICATION
BEFORE OLER, J.
DECREE NISI
AND NOW, this I~'~ay of October, 1995, upon consideration of Plaintiff's
amended complaint, following an equity trial and for the reasons stated in the
accompanying Opinion, the court finds in favor of Plaintiff and against Defendant,
and Defendant is ENJOINED, not later than sixty days hereafter, from continuing
to store junk, including disabled vehicles and trailers as described in the Opinion,
on the grounds of the premises occupied by him at 6495 Carlisle Pike,
Mechanicsburg, Pennsylvania.
THE PROTHONOTARY is directed to enter this Decree Nisi as a Final
Decree upon praecipe of a party under Pennsylvania Rule of Civil Procedure
227.4(1)(c), if no timely motion for post-trial relief under Pennsylvania Rule of Civil
Procedure 227.1 is filed.
By the Court,
esley Oler~J~
NO. 94-3422 EQUITY TERM
Richard C. Snelbaker, Esquire
Snelbaker & Brenneman, P.C.
44 West Main Street
PO Box 318
Mechanicsburg, PA 17055
Attorney for the Plaintiff
Stephen R. Portko, Esquire
Bratic and Portko
101 Office Center, Suite A
101 South U.S. Route 15
Dillsburg, PA 17019
Attorney for the Defendant
TOWNSHIP OF SILVER SPRING,
Plaintiff
GREGG R. CARIGNAN,
Defendant
· IN THE COURT OF COMMON PLEAS OF
· CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
· NO. 94 - 3422 EQUITY TERM
IN RE: ADJUDICATION
BEFORE OLER, J.
OPINION and DECREE NISI
Oler, J.:
This equity action for injunctive relief brought by a municipality arises out of
the condition of certain premises occupied by an individual defendant. Plaintiff
contends that the condition of the premises is violative of its junk/junked-vehicle
ordinance and its zoning ordinance, and that it constitutes a public nuisance.
Trial was held on April 17, August 4, August 11, and September 5, 1995,
and included a view of the premises by the court. For the reasons stated in this
Opinion, the court will find in favor of Plaintiff.
STATEMENT OF FACTS
Plaintiff is Silver Spring Township, a Pennsylvania township of the second
NO. 94-3422 EQUITY TERM
class located in Cumberland County and having offices at 6475 Carlisle Pike,
Mechanicsburg, Pennslyvania.~ Defendant is Gregg R. Carignan, an adult
individual residing at 6495 Carlisle Pike, Mechanicsburg [Silver Spring Township],
Cumberland County, Pennsylvania?
In December of 1959, Plaintiff township enacted a junkyard ordinance.3 In
October of 1969, the township enacted a junk/junked-vehicle ordinance.4 And in
September of 1976, the township enacted a zoning ordinance.~
In 1979, Guy DePasquale and Jean DePasquale were the owners of a
certain rectangular traCt of land fronting on the Carlisle Pike in Silver Spring
Township. The tract had front and rear dimensions of 160 feet, and a depth of
1plaintiff's amended complaint, paragraph 1; Defendant's answer with new
matter, paragraph 1.
2Plaintiff's amended complaint, paragraph 2; Defendant's answer with new
matter, paragraph 2.
3Ordinance No. 4. Plaintiff's Exhibit 1, Trial, Township of Silver Spring v.
Carignan, No. 94-3422 Equity Term (Cumberland County) (hereinafter Plaintiff's [or
Defendant's] Exhibit_). Although mentioned in Plaintiff's pleadings, this ordinance
is not at this time being relied upon by Plaintiff as a basis for relief. Plaintiff's Post-
Trial Brief, at 6-7.
4Ordinance No. 26. Plaintiff's Exhibit 2.
SZoning Ordinance of Silver Spring Township. Plaintiff's Exhibit 3.
2
NO. 94-3422 EQUITY TERM
about 550 feet. It had two buildings in the front portion and a house in the rear.6
A tenant lived on the first floor of the house, and around August of 1979
Defendant rented the second floor of the house for his residence and its
basement/garage area for storage. In 1980, when a fire damaged the second
floor, the first-floor tenant moved out, and Defendant continued to reside in the
house.7 In 1981, the DePasquales subdivided the tract into two lots, the larger lot
in front being of a non-residential nature and the smaller lot (125 feet by 160 feet)
in the rear containing the house.6
The subdivision was apparently intended to facilitate the purchase of the
residential lot by Defendant Carignan, but the purchase itself seems to have
become the subject of pending litigation between Defendant and the DePasquales
or their successors in interest? Defendant, in any event, still resides in the house,
SN.T. 66, 68-70 (testimony of Defendant) (August 4, 1995), Tdal, Township
of Silver Spring v. Carignan, No. 94-3422 Equity Term (Cumberland County)
(hereinafter N.T. , [testimony of ] [ ,1995]); Plaintiff's Exhibit 5
(subdivision plan).
7N.T. 67 (testimony of Defendant) (August 4, 1995).
8Plaintiff's Exhibit 5 (subdivision plan).
~N.T. 160 (testimony of Defendant) (August 4, 1995).
3
NO. 94-3422 EQUITY TERM
with his family.1°
In 1975, prior to moving to his present residence in the township, Defendant
was living with his parents in Camp Hill, Pennsylvania; at that time he started a
lawn maintenance business called CI (for Carignan Industries) Lawn and Garden.11
He apparently operated this business out of his residence after he moved to Silver
Spring Township, although as a practical matter, with the exception of occasional
repairs on equipment, the mechanical or physical part of the enterprise would have
been conducted at the properties of customers.12 No approval from the township
was obtained for any operation of the business on the premises.13
In 1985, Defendant purchased a business, now known as Gregg's Nursery
and Lawn Center, in Upper Allen Township, Cumberland County, Pennsylvania.TM
I°N.T. 157 (testimony of Defendant) (August 4, 1995); N.T. 211 (testimony
of Karen Carignan) (August 11, 1995). Defendant married Karen Carignan in 1982
and they have several children. N.T. 224, 228 (testimony of Karen Carignan)
(August 11, 1995).
11N.T. 70 (testimony of Defendant Carignan) (August 4, 1995).
12N.T. 65, 70, 87 (testimony of Defendant Carignan) (August 4, 1995).
~3N.T. 254 (testimony of John E. Freilino) (September 5, 1995). Township
permission for a new business was required in the form of "site plan approval"
under Plaintiff's ordinances. Id.
~4N.T. 88 (testimony of Defendant) (August 4, 1995); N.T. 190 (testimony of
Defendant) (August 11, 1995).
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NO. 94-3422 EQUITY TERM
In 1986, this operation became full-time.15 By July of 1988, Cl Lawn and Garden
was out of business.16
The lot where Defendant and his family reside, like the balance of the
DePasquale tract in front of it, is in a C-2 Highway Commercial zoning district.17
However, the premises are accessed by a short right-of-way from a residential
street, are adjacent to several residences, and by virtue of the dwelling house
partake more of the residential than commercial environment.16
Since at least March of 1987, the township has been engaged in a running
battle with Defendant as a result of the condition of his yard.lg The entire yard,
except for passageways through it, is full of decaying vehicles, mobile home trailers
acting as huge storage containers, rusting pieces of machinery, inoperable
15N.T. 89 (testimony of Defendant) (August 4, 1995).
lSPlaintiff's Exhibit 35 (employer's local quarterly tax return). Defendant's
home telephone number, however, continues to be listed in the telephone book as
also a number for CI Lawn and Garden. N.T. 187-88 (testimony of Defendant)
(August 11, 1995).
17N.T. 7 (testimony of William Banks) (April 17, 1995); Plaintiff's Exhibit 3
(zoning ordinance).
leView of premises, April 17, 1995; N.T. 10 (testimony of William Banks)
(April 17, 1995).
lgN.T. 12-198 (testimony of William Banks) (April 17, 1995).
5
NO. 94-3422 EQUITY TERM
equipment, broken kitchen appliances, oil drums, worn out tires, and so forth.2°
During a view of the premises by the court, the door to a refrigerator which
was ostensibly operating on the porch was opened to reveal the disintegrating
remains of some animal or bird habitation?~ Neighboring residents are unable to
venture into their yards at night because of an influx of skunks emanating from the
direction of the property,2~ their windows must be kept shut because of the animals'
stench,~3 and one neighbor has resorted to use of a gun to repel the skunks --
successfully killing ten of them?4
Notwithstanding notices of ordinance violations,~5 citations ~6 and successful
summary offense prosecutions,27 the township has been unsuccessful over the
31 -A,
~°View of premises, April 17, 1995; Plaintiff's Exhibits 24 (videotape), 30,
31-B (photographs).
2~View of premises, April 17, 1995.
=N.T. 4 (testimony of Flora Moorehead) (August 4, 1995).
~3N.T. 9 (testimony of Flora Moorehead) (August 4, 1995).
24N.T. 21 (testimony of Donald Moorehead) (August 4, 1995).
25Plaintiff's Exhibits 6, 10, 11, 12, 17, 19-21.
26Plaintiff's Exhibits 8, 13.
27plaintiff's Exhibits 14, 26.
6
NO. 94-3422 EQUITY TERM
years in effecting any amelioration of the condition of the premises.28 On June 24,
1994, it filed a complaint for injunctive relief.
Based upon the evidence presented at the equity trial herein, the court is
constrained to find, as alleged by Plaintiff, that the condition of the premises in
question is violative of the township's junk/junked-vehicle ordinance and its zoning
ordinance, and that it constitutes a public nuisance. Plaintiff's remedies at law
have proven inadequate to protect its rights.
STATEMENT OF LAW
Ordinances. In pertinent part, the junk/junked-vehicle ordinance of Silver
Spring Township provides as follows:
SECTION 5. No person shall park or store any wrecked
or junked or unlicensed vehicle or parts thereof or junk on any
private grounds within the Township of Silver Spring.
SECTION 6. With the exception of motor vehicles regularly
used for transportation by the owner or occupant of private grounds
within the Township of Silver Spring, no motor vehicle, junked
or wrecked or otherwise, shall be stored on said premises unless
the keeping or storage of the same has been approved by the
Township Supervisors.
28.See Plaintiff's Exhibits 7 (1988 photographs), 15 (1992 photographs), 16,
18 and 22 (1993 photographs), 23 (1994 photographs), 25, 30, 31-A, 31-B (1995
photographs).
7
NO. 94-3422 EQUITY TERM
SECTION 7. Any person desiring to store orto continue to store
motor vehicles on private grounds except for [emergency repairs under
certain conditions] shall apply in writing to the Township Supervisors
for a permit setting forth the location and description of the land on
which said motor vehicles are to be placed, the number and nature
thereof, the manner of storage, [and] the length and purpose for the
storage.
Ordinance No. 26, Township of Silver Spring (October 14, 1969).29 A vehicle or
motor vehicle is defined under the ordinance to include "one or more motor
vehicles, including trailers or semi-trailers and parts thereof, tractors and
motorcycles." Id., §1 (a). Junk is defined as "any material considered detrimental
to the health, cleanliness, beauty or safety of the Township." Id., §1 (b). Violations
of the ordinance are said to be nuisances. Id., §8.
In pertinent part, the zoning ordinance of Silver Spring Township provides
as follows:,
Section 815 NON-CONFORMING USE REGULATIONS
Section 815.1 Continuation
Any lawful use of a building or land which at
the effective date of this ordinance becomes
non-conforming, may be continued although such
use does not conform to the provisions of this
ordinance. Such continuation shall include
subsequent sales of the property. No change in
29Plaintiff's Exhibit 2.
8
NO. 94-3422 EQUITY TERM
non-conforming use shall be permitted.~°
Section 815.3 Discontinuance
If a nonconforming use of a building or
land is voluntarily abandoned and ceases
operation for a continuous period of more than
one year, then this shall be deemed to be an
intent to abandon such use, and any subsequent
use of such building or land shall conform to
the requirements of the zoning district in which
it is located.31
Section 302. C-2 HIGHWAY COMMERCIAL DISTRICT...
Section 302.1 Use Regulations
A. Uses by Right
In any C-2 district, land,
buildings or premises shall
be used by right for one or more
of the following:...
20. Business place of a builder,
carpenter, caterer, cleaner, contractor,
dyer, electrician, furrier, mason, painter,
plumber, roofer, upholsterer, and similar
~°§815.1, Zoning Ordinance of Silver Spring Township (September, 1976).
Plaintiff's Exhibit 3.
31§815.3, Zoning Ordinance of Silver Spring Township (September, 1976).
Plaintiff's Exhibit 3.
9
NO. 94-3422 EQUITY TERM
non-nuisance businesses, excluding open
storage of materials and excluding open
storage of motor vehicles.32
Section 809
Section 809.1
A.
every
GENERAL REGULATIONS
Prohibited Uses
The following uses are prohibited in
district.
1. Automobile graveyards.
2. An unoccupied mobile home shall
not be parked on a lot for more than
90 days unless such trailer is parked
so as not to be visible from a street or
other property line, or is suitably screened ....
5. Outdoor storage of any type
shall not be permitted unless such
storage is a part of the normal
operations conducted on the premises
subject to design and performance
standards for the prevailing zoning
district. Junk yards as defined by
this Ordinance are expressly prohibited.3~
Section 102 DEFINITIONS AND INTERPRETATIONS...
~2§302.1(A)(20), Zoning Ordinance of Silver Spring Township (September,
1976) (emphasis added). Plaintiff's Exhibit 3.
~§809.1(A)(5), Zoning Ordinance of Silver Spring Township (September,
1976) (emphasis added). Plaintiff's Exhibit 3.
10
NO. 94-3422 EQUITY TERM
Section 102.3 Definitions
A. The following words and phrases shall have
the meaning given in this section, as follows:...
74. Junk Yard - An area of land, with or
without buildings, used for the storage outside
a completely enclosed building, of used and
discarded materials, including, but not limited
to, waste paper, rags, metal, building materials,
house furnishings, machinery, vehicles, or parts
thereof, with or without the dismantling, processing,
salvage, sale or other use or disposition of the
same. The deposit or storage on a lot of two or
more unlicensed wrecked or disabled vehicles,
or the major part thereof, shall be deemed to
make a junk yard.~4
Public nuisance. "A nuisance is the unreasonable, unwarrantable, or
unlawful use of property which causes injury, damage, hurt, inconvenience,
annoyance, or discomfort to another in the legitimate enjoyment of his reasonable
rights of person or property." 28 P.L.E. Nuisance §1, at 140-41 (1960). "The
distinction between a public nuisance and a private nuisance is that a public
nuisance is a nuisance that is common to all the neighborhood where it is
committed, as well as those of the public who may be traveling in that vicinity,
while a private nuisance is one inflicting an injury personal to the party who is
34§102.3(A)(74), Zoning Ordinance of Silver Spring Township (September,
1976) (emphasis added). Plaintiff's Exhibit 3.
11
NO. 94-3422 EQUITY TERM
complaining, and to his property." Id. §61, at 182.
Junkyards may, of course, rise to the level of public nuisances, depending
upon the circumstances. See, e.g., Talley v. Borough of Trainer, 38 Pa. Commw.
441,394 A.2d 645 (1978).
Right of second class township to iniunctive relief. With respect to the
availability of equitable relief to a second class township, several principles of law
are pertinent to the present case. First, as a general rule it is recognized that at
times an ordinance can be most practically enforced by way of injunction. In the
context of a township's attempt to enforce a junkyard ordinance against a long-time
offender, the Commonwealth Court made the following observation:
We have said before, and repeat here,
that equity provides a much more effective
means of enforcing municipal ordinances than
summary conviction proceedings.
Beers v. Mount Pleasant Township, 29 Pa. Commw. 64, 69, 370 A.2d 807, 810
(1977).
Second, zoning ordinances are, by statute, enforceable through injunctions.
Act of July 31, 1968, P.L. 805, §617, as amended, 53 P.S. §10617 (1995 Supp.).
"[E]quity has jurisdiction to enforce compliance with a zoning ordinance at the
insistence of a municipality." Sameric Corp. of Valley Forge v. Valley Forge Center
12
NO. 94-3422 EQUITY TERM
Ass'n, 102 Pa. Commw. 581,588, 519 A.2d 546, 550 (1986).
Finally, under the Second Class Township Code, a township of the second
class is given the following powers, inter alia:
To prohibit nuisances, including but not limited to,
accumulations of garbage and rubbish, and the storage of
abandoned or junked automobiles, on private and public
property, and the carrying on of any offensive manufacture
or business; and to remove any nuisance or dangerous
structure on public or private grounds after notice to
the owner to do so, and, in his default, to collect the
cost of such removal, together with such penalty as may
be prescribed by ordinance from the owner by summary
proceedings or in the manner provided for the collection
of municipal claims or by an action of assumpsit without
the filing of a claim. In the exercise of the powers herein
conferred, the township may institute proceedings in courts
of equity.
Act of May 1, 1933, P.L. 103, §702, as amended, 53 P.S. §65712 (1995 Supp.)
(emphasis added).
Under this enabling act, it is not necessary that the word "nuisance" be
employed in a description of a prohibited activity such as a junkyard. Pushnik v.
Hempfield Township, 43 Pa. Commw. 332, 402 A.2d 318 (1979). On the other
hand, a prerequisite to enforcement of such an ordinance by a court of equity on
a nuisance theory is that the municipality prove the existence of a nuisance in fact.
See. Commonwealth v. Hanzlik, 400 Pa. 134, 161 A.2d 340 (1960); Petroff v. East
13
NO. 94-3422 EQUITY TERM
Whiteland Township, 12 Chester Co. 352 (1964).
A municipality's power with regard to public nuisances was discussed by the
Commonwealth Court in an "automobile graveyard" case in Talley v. Borough of
Trainer, 38 Pa. Commw. 441,394 A.2d 645 (1978). The following language in
Talley is instructive in the context of the present case:
It is clear from the record that a long standing dispute
existed between Defendant and the Borough concerning the
condition of the property where Defendant carried on his
automobile body repair business. Numerous bona fide attempts
made by Borough officials to have Defendant correct the condition
were met with outright recalcitrance and only grudging, partial
compliance. The record, as supplemented by photographic evidence,
reveals that numerous wrecked, junked and abandoned vehicles were
located on Defendant's property; that auto parts and related debris --
fenders and bumpers with jagged edges, transmissions, wheels, tires,
broken glass -- were strewn about the property; and that many of the
vehicles closely abutted and partially impinged upon a public sidewalk
frequently used by children going to and from school.
While it is true that there was no evidence that injuries had
actually occurred on Defendant's property, certainly it is not the
law that injuries need have occurred before a condition is adjudged
a nuisance and thereby abated. In short, our review of the whole
record indicates that the actual condition of Defendant's property
was of such a nature as to give rise to a conclusion that the storage
of wrecked, junked and abandoned vehicles thereon constituted a
public hazard and, thereby, a nuisance in fact within the meaning
of the ordinance. Though the mere presence of such vehicles on a
person's property cannot, in and of itself, support such a finding,
we do believe that the presence of such vehicles, combined with the
conditions and factors discussed above, may create a public hazard
and support a finding of nuisance in fact. We do not believe,
14
NO. 94-3422 EQUITY TERM
therefore, that the lower court acted arbitrarily or capriciously
in reaching its conclusion. We affirm.
Id. at 443-44, 394 A.2d at 646.
APPLICATION OF LAW TO FACTS
In the present case, Defendant has been shown, in the court's view, to have
maintained his premises for a number of years in violation of Plaintiff's junk/junked-
vehicle ordinance and its zoning ordinance, and to have established a public
nuisance in fact upon the property. With respect to the junk/junked-vehicle
ordinance, the record is replete with evidence that the premises are laden with
"wrecked or junked or unlicensed vehicle[s] or parts thereof or junk .... "
With respect to the zoning ordinance, the record is equally persuasive that,
whatever pre-ordinance rights of residential use may have attached to the property,
its subsequent use by Defendant for the outdoor storage of the materials described
heretofore is unprotected, and expressly prohibited, by the provisions of the
ordinance quoted above.
With respect to the existence of a public nuisance in fact, the court believes
that the proximity of the lot to a residential street, the inquisitive nature of children,
the character and amount of materials amassed and decaying upon the premises,
and the exportation of skunks into the neighborhood more than justify a conclusion
15
NO. 94-3422 EQUITY TERM
that the township has met its burden in this particular case.
Finally, Plaintiff's extensive efforts in the past to effect an amelioration of the
problem through notices, citations and successful summary offense prosecutions
have proved inadequate.35
entered:
For these reasons, the following decree nisi will be
DECREE NISI
AND NOW, this/C~day of October, 1995, upon consideration of Plaintiff's
amended complaint, following an equity trial and for the reasons stated in the
accompanying Opinion, the court finds in favor of Plaintiff and against Defendant,
and Defendant is ENJOINED, not later than sixty days hereafter, from continuing
to store junk, including disabled vehicles and trailers as described in the Opinion,
on the grounds of the premises occupied by him at 6495 Carlisle Pike,
3S'l'he court is unable to agree with Defendant, on the basis of the evidence
presented, that Plaintiff is in any way guilty of laches or unclean hands, or is
estopped from pursuing the present action. In addition, the fact that Defendant
failed to seek approval from the township for operation of his business on the
premises, as required by its ordinances, further weakens any claim of entitlement
to a use in violation of the law. See note 13 supra and accompanying text;
Roseberry Life Ins. Co. v. Zoning Hearing Board, _ Pa. Commw. , __ A.2d
(No. 2441 C.D. 1995) (September 5, 1995).
An additional issue pressed by Defendant, involving notice, was dealt with
by the court on preliminary objections and will not be here revisited. See Opinion
and Order of Court, September 28, 1994.
16
NO. 94-3422 EQUITY TERM
Mechanicsburg, Pennsylvania.
THE PROTHONOTARY is directed to enter this Decree Nisi as a Final
Decree upon praecipe of a party under Pennsylvania Rule of Civil Procedure
227.4(1)(c), if no timely motion for post-trial relief under Pennsylvania Rule of Civil
Procedure 227.1 is filed.
By the Court,
/J. ~Vesley Oler, Jr.,~
Richard C. Snelbaker, Esquire
Snelbaker & Brenneman, P.C.
44 West Main Street
PO Box 318
Mechanicsburg, PA 17055
Attorney for the Plaintiff
Stephen R. Portko, Esquire
Bratic and Portko
101 Office Center, Suite A
101 South U.S. Route 15
Dillsburg, PA 17019
Attorney for the Defendant
17