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HomeMy WebLinkAbout94-3422 CivilTOWNSHIP OF SILVER SPRING, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : CIVIL ACTION - EQUITY : GREGG R. CARIGNAN, : Defendant : NO. 94 - 3422 EQUITY TERM IN RE: ADJUDICATION BEFORE OLER, J. DECREE NISI AND NOW, this I~'~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, 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~ ' J. V Richard C. Snelbaker, Esquire Snelbaker & Brenneman, P.C. 44 West Main Street PO Box 318 Mechanicsburg, PA 17055 Attomey for the Plaintiff Stephen R. Portko, Esquire Bratic and Portko 101 Office Center, Suite A 101 South U.S. Route 15 Dillsburg, PA 17019 Attomey for the Defendant TOWNSHIP OF SILVER SPRING, : IN THE COURTOF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : CIVIL ACTION - EQUITY GREGG R. CARIGNAN, : Defendant 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 Spdng Township, a Pennsylvania township of the second class located in Cumberland County and having offices at 6475 Cadisle Pike, NO. 94-3422 EQUITY TERM Mechanicsburg, Pennslyvania.~ Defendant is Gregg R. Carignan, an adult individual residing at 6495 Carlisle Pike, Mechanicsburg [Silver Spring Township], Cumberland County, Pennsylvania.2 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 about 550 feet. It had two buildings in the front portion and a house in the rear.6 . ~Plaintiff'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. 6Zoning Ordinance of Silver Spring Township. Plaintiff's Exhibit 3. SN.T. m (testimony of Defendant) (August 4, 1995), Trial, Township of Silver Spring v. Carignan, No. 94-3422 Equity Term (Cumberland County) (hereinafter 2 NO. 94-3422 EQUITY TERM 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.8 The subdivision was apparently intended to facilitate the purchase of the residential lot by Defendant Cadgnan, 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, with his family.TM N.T. , [testimony of ] [ __, 1995]); Plaintiff's Exhibit 5 (subdivision plan). 7N,T. ~ (testimony of Defendant) (August 4, 1995). 8Plaintiff's Exhibit 5 (subdivision plan). 9N.T. (testimony of Defendant) (August 4, 1995). ~°N.T. (testimony of Defendant) (August 4, 1995); N.T. (testimony of Karen Cadgnan) (August 11, 1995). Defendant married Karen Cadgnan in 1982 and they have several children. N.T. __ (testimony of Karen Carignan) (August 11, 1995). 3 NO. 94-3422 EQUITY TERM In 1975, pdor 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 Cadgnan Industries) Lawn and Garden.~ 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.~2 No approval from the township was obtained for any operation of the business on the premises.~3 In 1985, Defendant pumhased a business, now known as Gregg's Nursery and Lawn Center, in Upper Allen Township, Cumberland County, Pennsylvania.TM In 1986, this operation became full-time.~5 By July of 1988, CI Lawn and Garden ~N.T. __ (testimony of Defendant Cadgnan) (August 4, 1995). ~2N.T. __ (testimony of Defendant Carignan) (August 4, 1995). ~3N.T. (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. (testimony of Defendant) (August 4, 1995); N.T. __ (testimony of Defendant) (August 11, 1995). ~SN.T. __ (testimony of Defendant) (August 4, 1995). 4 NO. 94-3422 EQUITY TERM was out of business.~6 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? 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,ia 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.TM 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 equipment, broken kitchen appliances, oil drums, worn out tires, and so forth.2° ~SPlaintiff'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. m (testimony of Defendant) (August 11, 1995). ~7N.T. 7 (testimony of William Banks) (April 17, 1995); Plaintiff's Exhibit 3 (zoning ordinance). ~View of premises, April 17, 1995; N.T. 10 (testimony of William Banks) (April 17, 1995). ~gN.T. 12-198 (testimony of William Banks) (April 17, 1995). 2°View of premises, April 17, 1995; Plaintiff's Exhibits 24 (videotape), 30, 31-A, 31-B (photographs). 5 NO. 94-3422 EQUITY TERM 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,23 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,~s citations ~6 and successful summary offense prosecutions,~7 the township has been unsuccessful over the years in effecting any amelioration of the condition of the premises.28 On June 24, ~View of premises, April 17, 1995. =N.T. (testimony of Flora Moorehead) (August 4, 1995). 23N.T. __ (testimony of Flora Moorehead) (August 4, 1995). 24N.T. __ (testimony of Donald Moorehead) (August 4, 1995). ~SPlaintiff's Exhibits 6, 10, 11, 12, 17, 19-21. ~6Plaintiff's Exhibits 8, 13. 27plaintiff's Exhibits 14, 26. 2eSee 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). 6 NO. 94-3422 EQUITY TERM 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. SECTION 7. Any person desiring to store or to 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 7 NO. 94-3422 EQUITY TERM storage. Ordinance No. 26, Township of Silver Spring (October 14, 1969).2g 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., §l(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 non-conforming use shall be permitted?° 2gPlaintiff's Exhibit 2. 3°§815.1, Zoning Ordinance of Silver Spring Township (September, 1976). Plaintiff's Exhibit 3. 8 NO. 94-3422 EQUITY TERM 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 distdct in which it is located,s~ 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 dght 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 non-nuisance businesses, excluding open storage of materials and excluding open storage of motor vehicles.~ 3~§815.3, Zoning Ordinance of Silver Spdng Township (September, 1976). Plaintiff's Exhibit 3. ~§302.1 (A)(20), Zoning Ordinance of Silver Spring Township (September, 1976) (emphasis added). Plaintiff's Exhibit 3. 9 NO. 94-3422 EQUITY TERM Section 809 GENERAL REGULATIONS Section 809.1 Prohibited Uses A. The following uses are prohibited in every 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... Section 102.3 Definitions A. The following words and phrases shall have the meaning given in this section, as follows:... ~3§809.1(A)(5), Zoning Ordinance of Silver Spdng Township (September, 1976) (emphasis added). Plaintiff's Exhibit 3. 10 NO. 94-3422 EQUITY TERM 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.34 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 pdvate 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 complaining~ and to his property." Id. §61, at 182. Junkyards may, of course, dse to the level of public nuisances, depending ~4§102.3(A)(74), Zoning Ordinance of Silver Spring Township (September, 1976) (emphasis added). Plaintiff's Exhibit 3. 11 NO. 94-3422 EQUITY TERM 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 injunctive 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 equ_ity 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." Samedc Corp. of Valley Forge v. Valley Forge Center 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 12 NO. 94-3422 EQUITY TERM 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 pdvate and public property, and the carrying on of any offensive manufacture or business; and to remove any nuisance or dangerous structure on public or pdvate 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 enfomement 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 Whiteland Township, 12 Chester Co. 352 (1964). A municipality's power with regard to public nuisances was discussed by the 13 NO. 94-3422 EQUITY TERM 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 outdght 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, therefore, that the lower court acted arbitrarily or capriciously in reaching its conclusion. We affirm. Id. at 443-44, 394 A.2d at 646. 14 NO. 94-3422 EQUITY TERM 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 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 15 NO. 94-3422 EQUITY TERM have proved inadequate.~ For these reasons, the following decree nisi will be entered: DECREE NISI AND NOW, this ]<~"ay of October, 1995, upon consideration of Plaintiffs 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 ~'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 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, 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