HomeMy WebLinkAbout93-1996 CivilWELLINGTON FARMS, INC., : IN THE COURT OF COMMON PLEAS OF
Appellant : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CIVIL ACTION - LAW
:
THE ZONING HEARING BOARD OF :
SILVER SPRING TOWNSHIP, :
Appellee : NO. 1996 CIVIL 1993
IN RE: LAND USE APPEAL
BEFORE SHEELY, P.J., HOFFER and OLER, JJ.
ORDER OF COURT
AND NOW, this ~ day of March, 1994, after careful
consideration of Appellant's land use appeal, and for the reasons
stated in the accompanying Opinion, the decision of the Zoning
Hearing Board of Silver Spring Township is AFFIRMED.
BY THE COURT,
J Wesley Oler, Jr., J.
Linus E. Fenicle, Esq.
Attorney for Appellant
Steven J. Weingarten, Esq.
Carol A. Steinour, Esq.
Attorneys for Appellee
: rc
WELLINGTON FARMS, INC., : IN THE COURT OF COMMON PLEAS OF
Appellant : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CIVIL ACTION - LAW
:
THE ZONING HEARING BOARD OF :
SILVER SPRING TOWNSHIP, :
Appellee : NO. 1996 CIVIL 1993
IN RE: LAND USE APPEAL
BEFORE SHEELY, P.J., HOFFER and OLER.'JJ~
OPINION AND ORDER OF COURT
Oler, J.
This case is an appeal from a decision of a zoning hearing
board sustaining a determination of a zoning officer.~
Specifically, it is an appeal by the occupant of land from a
decision affirming a cease and desist order.2 The record below
contains findings of fact by the Board, and no additional evidence
has been taken by the Court for purposes of this appeal.3 The
matter was argued on December 8, 1993.
Statement of Facts
Because of the operation of an allegedly unauthorized
slaughterhouse by Appellant Wellington Farms, Inc., in Silver
Spring Township, Cumberland County, Pennsylvania, a cease and
desist order was issued by a township zoning officer on February
~ See Act of July 31, 1968, P.L. 805, §1002-A, as added, 53
P.S. §11002-A (1993 Supp.) (jurisdiction of court of common pleas);
id., §909.1, as added, 53 P.S. §10909.1(a)(3) (1993 Supp.)
(jurisdiction of zoning hearing board).
2 See Notice of Land Use Appeal.
3 See Act of July 31, 1968, P.L. 805, §1005-A, as added, 53
P.S. §l1005-A (1993 Supp.)
No. 1996 CiVil 1993
18, 1993.4 A supplemental notice of violation in more detailed
form was issued by the officer on March 1, 1993.s
The determination of the zoning officer was appealed by
Appellant to the Zoning Hearing Board of Silver Spring Township,
Appellee herein, on March 3, 1993.~ On April 21, 1993, a hearing
was held by the Board,? pursuant to individual notice to Appellant8
and neighboring property owners,9 posting of the propertyTM and
newspaper advertisement.~
At the hearing, Appellant appeared With counsel and presented
evidence in support of the appeal.~2 The Township of Silver Spring
4 Notice of Zoning Violation dated 2/18/93, Certified Record
of Zoning Hearing Board of Silver Spring Township (hereinafter , Record of Zoning Hearing Board).
s Supplementary Notice of Zoning Violation dated 3/1/93,
Record of Zoning Hearing Board.
Appeal Application, Record of Zoning Hearing Board.
N.T. Hearing, April 21, 1993, Record of Zoning Hearing
Board.
8 N.T. 63, Hearing, April 21, 1993; letter, March 26, 1993,
and certified mail receipt card; Record of Zoning Hearing Board.
9 N.T. 63, Hearing, April 21, 1993; letter, April 14, 1993;
Record of Zoning Hearing Board.
~0 N.T. 63, Hearing, April 21, 1993, Record of Zoning Hearing
Board.
~ N.T. 63, Hearing, April 21, 1993; letter, March 26, 1993,
and proof of publication; Record of Zoning Hearing Board.
~2 N.T. 64, Hearing, April 21, 1993, Record of Zoning Hearing
Board.
2
No. 1996 Civil 1993
appeared with its solicitor and presented evidence in opposition.~3
Testimony on behalf of Appellant was given by George
Oppenheimer,~4 president and farm manager of Wellington Farms,
Inc.,~5 and Clyde Strock,~6 a Cumberland County turkey farmer.~7
Testimony on behalf of Appellee was elicited from Mr. Oppenheimer,
~9 zoning officer of Silver
~8 and Bill Banks,
called as on cross,
Spring Township.2° Several members of the pUblic in attendance at
the hearing also testified.2~ In addition, several exhibits
introduced by the Township were made part of the record,22 and, by
~3 N.T. 64, Hearing, April 21, 1993, Record of Zoning Hearing
Board.
~4 N.T. 64-85, Hearing, April 21, 1993, Record of Zoning
Hearing Board.
~ N.T. 65, Hearing, April 21, 1993, Record of Zoning Hearing
Board.
~6 N.T. 85-95, Hearing, April 21, 1993, Record of Zoning
Hearing Board.
~7 N.T. 86, Hearing, April 21, 1993, Record of Zoning Hearing
Board.
~8 N.T. 111-16, Hearing, April 21, 1993, Record of Zoning
Hearing Board.
~9 N.T. 116-17, Hearing, April 21, 1993, Record of Zoning
Hearing Board.
N.T. 116, Hearing, April 21, 1993, Record of Zoning Hearing
Board. ~
N.T. 129-33, Hearing, April 21, 1993, Record of Zoning
Hearing Board.
N.T. 116-27, Hearing, April 21, 1993, Record of Zoning
Hearing Board.
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No. 1996 Civil 1993
stipulation of counsel, a copy of the Township's zoning ordinance
has been supplied to the record.23
The land in question, situated at 7 0 Konhau s Road,
Mechanicsburg ( Silver Spring Township, Cumberland County
Pennsylvania) ,24 was said to lie in an AG-Agricultural District
under the Township's zoning ordinance.2s "Farm regulations" in the
ordinance, applicable to uses in AG districts,26 permitted the
"hatching and raising on a commercial scale of poultry," but
authorized the "slaughtering, dressing and marketing of poultry,"
only if they were "incidental to the operation of a farm."27 Non-
conforming use regulations in the ordinance permitted the
continuation of nonconforming uses, but proscribed changes in such
28
uses.
Stipulation of counsel, filed March 7, 1994.
N.T. 65; Township Exhibit 2; Record of Zoning Hearing
Board.
N.T. 139; Township Exhibits 1 and 2; Record of Zoning
Hearing Board; see Zoning Ordinance of Silver Spring Township art.
150.
Zoning Ordinance of Silver Spring Township §151.1.
Zoning Ordinance of Silver Spring Township §808(1)(c), (f).
"Any lawful use of a building or land which at the
effective date of this ordinance [September, 1976] 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." Zoning Ordinance of Silver Spring Township
§815.1.
4
No. 1996 Civil 1993
On behalf of Appellant, Mr. Oppenheimer testified that the
land at issue consisted of twenty-seven acres,29 and contained a
"poultry farm with two farmhouses, barns, poultry growing
buildings, and a poultry processing building."3° Twenty or more of
the acres were devoted to corn and soybean crops, according to his
testimony.3~
Mr. Oppenheimer stated that his predecessor in title had been
a Jim Hoover, and that preceding Mr. Hoover a Paul Konhaus had
operated the facility and premises.32 He testified that he himself
had been in the poultry business since 1985,33 that he had taken
over this property in January of 1992,TM commencing operations in
February,3s that he had about forty employees,36 that his operation
N.T. 65, Hearing, April 21, 1993, Record of Zoning Hearing
Board.
N.T. 65, Hearing, April 21, 1993, Record of Zoning Hearing
Board.
~ N.T. 66, 72, Hearing, April 21, 1993, Record of Zoning
Hearing Board.
~ N.T. 69-70, Hearing, April 21, 1993, Record of Zoning
Hearing Board.
N.T. 68, Hearing, April 21, 1993, Record of Zoning Hearing
Board.
N.T. 66, Hearing, April 21, 1993, Record of Zoning Hearing
Board.
3s N.T. 74, Hearing, April 21, 1993, Record of Zoning Hearing
Board.
N.T. 68, Hearing, April 21, 1993, Record of Zoning Hearing
Board.
5
No. 1996 Civil 1993
was that of "a poultry producer, grower, [and] wholesaler of
dressed poultry and poultry parts,''37 and that he had raised and
slaughtered a total of 16,000 chickens during May, June and July of
1992.38 He also said that he imported some birds for slaughter as
well.~9
On cross-examination, however, he conceded that the crops
raised on the land were grown by a lessee4° and that none of them
was used in Wellington's operation;4~ that from February through
July of 1992, as many as 4000 birds per week were slaughtered on
the premises, of which only the aforesaid 16,000 had been raised
thereon;42 and that no poultry whatsoever had been raised on the
premises since July of 1992,4~ whereas as many as 39,000 birds had
37 N.T. 66, Hearing, April 21, 1993, Record of Zoning Hearing
Board.
38 N.T. 67, Hearing, April 21, 1993, Record of Zoning Hearing
Board; see also N.T. 73.
N.T. 67, Hearing, April 21, 1993, Record of Zoning Hearing
Board.
N.T. 78, Hearing, April 21, 1993, Record of Zoning Hearing
Board.
N.T. 78, Hearing, April 21, 1993, Record of Zoning Hearing
Board.
N.T. 74-75, Hearing, April 21, 1993, Record of Zoning
Hearing Board.
N.T. 73-76, Hearing. April 21, 1993, Record of Zoning
Hearing Board.
6
No. 1996 Civil 1993
been brought in and slaughtered each month since then.44
Mr. Strock testified that a prior operator of the facility,
Mr. Konhaus, had run a turkey business,4~ that Mr. Oppenheimer
operated a chicken business,46 and that they are "entirely different
businesses.''~? He stated that he sold Mr. Konhaus mature turkeys
on a regular, yearly basis, in the "'50s, '60s, and '70s," that Mr.
Konhaus slaughtered these imported birds on the subject premises,48
and that Mr. Konhaus also raised turkeys on the premises.~9 He also
testified, however, that such sales to Mr. Konhaus were "[n]ot
every year,"s° and on cross-examination it developed that he sold
. s~ 200 being the
"maybe only 100 or 200 a year to Mr. Konhaus,
4" N.T. 75-76, 80, Hearing, April 21, 1993, Record of Zoning
Hearing Board.
~s N.T. 86, Hearing, April 21, 1993, Record of Zoning Hearing
Board.
46 N.T. 89, Hearing, April 21, 1993, Record of Zoning Hearing
Board.
,7 N.T. 89, Hearing, April 21, 1993, Record of Zoning Hearing
Board.
48 N.T. 86-87, Hearing, April 21, 1993, Record of Zoning
Hearing Board. He also testified that he "did it a little bit with
"also. N T. 87-88
the other gentleman, Hoover, . .
N.T. 88, Hearing, April 21, 1993, Record of Zoning Hearing
Board.
s0 N.T. 88, Hearing, April 21, 1993, Record of Zoning Hearing
Board.
s~ N.T. 90, Hearing, April 21, 1993, Record of Zoning Hearing
Board.
No. 1996 Civil 1993
maximum,s2 He stated that such transactions between him and Mr.
Konhaus were mutual "favor[s]," and that he did not take his
turkeys to Mr. Konhaus to be slaughtered on a regular basis,s3
On behalf of the Township, testimony was elicited from Mr.
Oppenheimer as on cross that Wellington Farms, Inc., had filed a
"site plan waiver" request with the Township on November 19, 1991.54
Such a waiver would obviate the procedures normally incident to a
new occupancy permit,s5 In its application for the waiver,
Appellant named itself as equitable owner of the property, and
described its proposed use of the premises as "Raising,
s2 N.T. 90, Hearing, April 21, 1993, Record of Zoning Hearing
Board.
N.T. 94, Hearing, April 21, 1993, Record of Zoning Hearing
Board.
54 N.T. 112, Hearing, April 21, 1993, Record of Zoning Hearing
Board. This application is contained in Township Exhibit 2,
Hearing, Record of Zoning Hearing Board.
ss Under the Township's zoning ordinance, with certain
exceptions not here relevant, a prerequisite to "any change of use,
ownership, proprietorship or occupancy within the Township" was
"site plan approval," which involved a review by the Township
planning commission and the board of supervisors, and the issuance
of a new "Certificate of Occupancy." Zoning Ordinance of Silver
Spring Township §§902, 903.
The purpose of "site plan review" as required by the ordinance
was "to determine whether the proposed use, building, structure,
addition to any building, use or structure will conform to the
revisDd Statutes, the Zoning Ordinance, the Land Subdivision
Ordinance, and all other applicable ordinances and requirements of
the Township, County, State, Federal Government or other agencies
with jurisdiction over matters pertaining to site development."
Id. §901(A).
No. 1996 Civil 1993
Slaughtering and Dressing of Poultry."s6
When asked whether an issue as to the proposed use came up in
the course of seeking the site plan waiver, Mr. Oppenheimer
initially testified that he did not recall,s7 The question was
pressed by the Township's counsel:
· Q Are you telling us, Mr. Oppenheimer,
that as a principal in Wellington Farms, you
were not aware of the controversy that
developed in the course of your seeking the
site plan waiver as to what use you were going
to make of the property?
A I was going to make the use that was
shown on the application.
Q You knew there was a controversy?
A As a matter of fact, the way it all
was resolved was the controversy was - you
asked me a question. I'm going to answer it.
Q Please do.
A Okay ....
The basis of the controversy was the
question of change of ownership in the
property. The property has never changed
ownership. The need for a site plan waiver
shouldn't even have applied. We shouldn't
even have come before the commission for a
site plan waiver because the property did not
and still has not to this day changed hands.
~6 Township Exhibit 2, Hearing, April 21, 1993, Record of
Zoning Hearing Board.
N.T. 114, Hearing, April 21, 1993, Record of Zoning Hearing
Board.
9
No. 1996 Civil 1993
Q That's your answer to my question?
A I guess it is.~8
Mr. Oppenheimer testified that his company was represented by
a certain attorney during the site plan waiver process.~9 A letter
from the attorney's law firm was identified by zoning officer Banks
as having been filed with the Township's planning commission.6° The
letter argued in favor of Wellington's site plan waiver request,
and made the following representations in clarification of the
proposed use:
Wellington Farms will continue to use the
property as a poultry farm. As Hoover Farms
and Konhaus Farms had done before it,
Wellington Farms will bring young birds onto
the farm. The chicks will be raised on the
farm until maturation. Upon maturation, the
poultry will be slaughtered, dressed, and
packaged on the property. The poultry will
then be transported off-site and distributed
to various retailing facilities.
Wellington Farms will raise and produce
(that is dress and market) poultry ....
Wellington Farms does not intend to conduct a
Slaughter house; that is, truck in live,
mature birds and then slaughter the birds upon
delivery. Wellington Farms generally will be
dressing only those birds that have been
raised on the property.6~
~8 N.T. 113-15, Hearing, April 21, 1993, Record of Zoning
Hearing Board.
~9 N.T. 113, Hearing, April 21, 1993, Record of Zoning Hearing
Board.
60 N.T. 117; Township Exhibit 1; Hearing, April 21, 1993,
Record of Zoning Hearing Board.
6~ Township Exhibit 1, Hearing, April 21, 1993, Record of
Zoning Hearing Board (emphasis added).
10
No. 1996 Civil 1993
Following submission of the letter containing these
representations, the site plan waiver request was approved by the
Township,62 and a permit was issued to Wellington Farms in
connection with the proposed use.63
When shown a copy of the letter from Wellington's counsel to
the planning commission, Mr. Oppenheimer stated he knew nothing
about it.64 At the conclusion of the hearing, counsel for
Wellington argued that his client's activity on the land was a use
permitted by right under the zoning ordinance6s or, in the
alternative, qualified as a continuation of a nonconforming use.66
Counsel for the Township argued that Wellington had misled ~the
Township in obtaining a site plan waiver,67 that the slaughtering
activity of Wellington was not "incidental" to the operation of a
~2 Township Exhibit 3, Hearing, April 21, 1993, Record of
Zoning Hearing Board.
63 Township Exhibit 2, Hearing, April 21, 1993, Record of
Zoning Hearing Board.
N.T. 116, Hearing, April 21, 1993, Record of Zoning Hearing
Board.
N.T. 137, Hearing, April 21, 1993, Record of Zoning Hearing
Board.
N.T. 137, Hearing, April 21, 1993, Record of Zoning Hearing
Board.
N.T. 143, Hearing, April 21, 1993, Record of Zoning Hearing
Board.
11
No. 1996 Civil 1993
farm,68 and that an importation of at most 200 birds for slaughter
in past years was not comparable, for nonconforming use purposes,
to the massive imported slaughtering operation undertaken by
Wellington.69 "This [operation being conducted on the premises],"
the Township's counsel had suggested earlier, "is [an] industrial
slaughterhouse. This is not a farming operation.''7°
Following the arguments of counsel, the Zoning Hearing Board
voted unanimously to deny the appeal.TM On May 25, 1993, the Board
supported its decision with a formal order and opinion, containing
findings of fact, discussion and conclusions. Briefly stated, the
Board concluded that Appellant's slaughtering operation was not
"incidental" to a farming operation and that it represented a
sufficient change from any prior use to preclude qualification for
nonconforming use status.
On June 15, 1993, Appellant'filed an appeal from the Board's
decision sustaining the zoning officer's determination. Appellant
argues on appeal (1) that its activity of slaughtering imported
~8 N.T. 141, Hearing, April 21, 1993, Record of Zoning Hearing
Board. He argued that it was an independent operation "to be
placed in the M2 general industrial district .... " Id.
N.T. 141, Hearing, April 21, 1993, Record of Zoning Hearing
Board.
N.T. 101, Hearing, April 21, 1993, Record of Zoning Hearing
Board.
N.T. 145-46, Hearing, April 21, 1993, Record of Zoning
Hearing Board.
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No. 1996 Civil 1993
birds was a permitted use under the zoning ordinance,72 (2) that,
in the alternative, the activity was a continuation of a
nonconforming use,73 and (3) that the zoning officer's enforcement
order was incorrectly served upon Appellant instead of upon the
property owner, in contravention of the Municipalities Planning
Code.TM
Statement of Law
Standard of review. Under the Municipalities Planning Code,
it is provided that "[i]f the record below includes findings of
fact made by the ... [zoning hearing] board ... whose decision ...
is brought up for review and the court does not take additional
evidence or appoint a referee to take additional evidence, the
findings of the ... board ... shall not be disturbed by the court
if supported by substantial evidence." Act of July 31, 1968, P.L.
805, §1005-A, as added, 53 P.S. §l1005-A (1993 Supp.). In
addition, it is a general rule of appellate review that a decision
below may be affirmed where it is correct on any legal ground or
theory.~s This rule is applicable to decisions of zoning hearing
Brief of Appellant, at 3-7.
Brief of Appellant, at 7.
Brief of Appellant, at 8. Under Cumberland County Rule of
Court 210-7, other "[i]ssues raised, but not briefed, shall be
deemed abandoned."
~ Emerick v. Carson, 325 Pa. Super. 308, 316 n.2, 472 A.2d
1133, 1137 n.2 (1984).
13
No. 1996 Civil 1993
boards on appeal.TM
Zoning ordinance interpretation. Where a zoning ordinance
does not define a term, it is to be construed according to its
plain, ordinary and usually understood meaning. See Farmland
Industries, Inc. v. Turkey Hill Minit Markets, Inc., 65 Pa. Commw.
288, 442 A.2d 395 (1982). With respect to the word "incidental,"
its most common meaning is "subordinate, nonessential, or attendant
in position or significance ... as ... occurring merely by chance
or without intention or calculation[,] occurring as a minor
concomitant .... " Webster's New Third International Dictionary
1142 (1963); see Hansen Properties III v. Zoning Hearing Board, 130
Pa. Commw. 8, 13 n.5, 566 A.2d 926, 927 n.5 (1989). "Incidental"
means "happening or likely to happen as a result of or in
connection with something more important[,] ... secondary or minor
.... " 1 Webster's New Twentieth Century Dictionary 922 (2d ed.
1964).
Nonconforminq uses. A nonconforming use is accorded certain
rights of continuation and expansion under Pennsylvania law. See
2 Ryan, Pennsylvania Zoning Law and Practice S§7.1 et seq. (1989).
However, "[t]he burden of proving the extent or existence of a
nonconforming use rests with the [party] who would claim the
benefit of the rights accorded property with that status." R.K.
~ Gateside-Queensgate Co. v. Delaware Petroleum Co., 134 Pa.
Commw. 603, 580 A.2d 443 (1990).
14
No. 1996 Civil 1993
Kibblehouse Quarries v. Marlborough Township Zoning Hearing Board,
Pa. Commw. , , 630 A.2d 937, 941 (1993). Furthermore, the
protection afforded nonconforming uses in zoning law "is limited to
the existing use" - it does not encompass changes to new uses. 2
Ryan, Pennsylvania Zoning Law and Practice §7.6.1, at 45 (1981).
Estoppel. Under the doctrine of promissory estoppel, "[a]
promise which the promisor should reasonably expect to induce
action or forbearance of a definite and substantial character on
the part of the promisee and which does induce such action or
forbearance is binding if injustice can be avoided only by the
enforcement of the promise." Fried v. Fisher, 328 Pa. 497, 501,
196 A. 39, 41 (1938); see 14 P.L.E. Estoppel §75 (1959).
Enforcement notices. Section 616.1 of the Municipalities
Planning Code provides, in pertinent part, as follows:
(a) If it appears to the municipality
that a violation of any zoning ordinance
enacted under this act or prior enabling laws
has occurred, the municipality shall initiate
enforcement proceedings by sending an
enforcement notice as provided in this
section.
(b) The enforcement notice shall be sent
to the owner of record of the parcel on which
the violation has occurred, to any person who
has filed a written request to receive
enforcement notices regarding that parcel, and
to any other person requested in writing by
the owner of record.
Act of July 31, 1968, P.L. 805, §616.1, as added, 53 P.S. §10616.1
(1993 Supp.).
15
No. 1996 Civil 1993
However, as a general rule a party that has itself received
notice of an action lacks standing to assert the notice rights of
others. Barasch v. Public Utility Commission, 119 Pa. Commw. 81,
94 n.7, 546 A.2d 1296, 1302 n.7 (1988). In addition, procedural
irregularities with respect to notice are generally not found to be
dispositive of a case where the complaining party has shown no
prejudice therefrom. See, e.g., In re Adoption of Baby Boy
McKnight, 338 Pa. Super. 603, 488 A.2d 56 (1985). Finally, where
no additional evidence is taken in an appeal from a zoning hearing
board's decision, an appellant may not introduce to the court a new
theory of relief not presented to the board. Myers v. State
College Zoning Hearing Board, 108 Pa. Commw. 624, 530 A.2d 526
(1987).
Application of Law to Facts
In the present matter, an application of the foregoing
principles of law to the facts of the case militates against a
reversal of the Zoning Hearing Board's decision. The Board's
conclusion that Appellant had established a slaughterhouse
operation upon the premises in question which could not reasonably
be called "incidental" to a farm was amply supported by substantial
16
No. 1996 Civil 1993
evidence.77 In addition, the Appellant's evidence as to prior
77 In its brief, Appellant cites the following provisions of
a certain statute designed to conserve, protect and encourage the
development and improvement of agricultural land for the production
of food and other agricultural products:
(a) Every municipality shall encourage
the continuity, development and viability of~
agricultural operations within its
jurisdiction. Every municipality that defines
or prohibits a public nuisance shall exclude
from the definition of such nuisance any
agricultural operation conducted in accordance
with normal agricultural operations so long as
the agricultural operation does not have a
direct adverse effect on the public health and
safety.
(b) Direct commercial sales of
agricultural commodities upon property owned
and operated by a landowner who produces not
less than 50% of the commodities sold shall be
authorized, notwithstanding municipal
ordinance, public nuisance or zoning
prohibitions. Such direct sales shall be
authorized without regard to the 50%
limitation under circumstances of crop failure
due to reasons beyond the control of the
landowner.
Act of June 10, 1982, P.L. 854, §3, as amended, 3 P.S. S953 (1993
Supp.); Brief of Appellant, at 6-7. Under the act, a normal
agricultural operation is defined to include "[t]he customary and
generally accepted activities, practices and procedures that
farmers adopt, use or engage in year after year in the production
AND preparation for Market o[f] poultry .... " Id. §2, 3 P.S. §952
(1993 Supp.) (capitalization in original).
Appellant appears to argue that an interpretation of the
zoning ordinance sub judice which would preclude the importation of
even a single bird for slaughter upon a poultry farm would be
violative of these provisions. Although this may be true, the
slaughterhouse operation being conducted by Appellant was far
beyond the scope of the protection of the provisions quoted.
Nothing in this Opinion is intended to constitute a holding that
the ordinance proscribes any slaughtering whatsoever of imported
birds when such an operation is truly "incidental" to the operation
of a poultry farm.
17
No. 1996 Civil 1993
activity upon the premises in which a small number of turkeys were
reported to have been imported for slaughter can not be said to
have sustained its burden of proving the existence of what is
basically an independent slaughterhouse operation involving
hundreds of thousands of imported chickens per year, as a
nonconforming use. Support for the Board's decision may also be
found in the doctrine of estoppel, based upon the reliance of the
Township in granting a permit to Appellant upon representations of
Appellant's counsel that the operation which developed would not
occur.
Appellant's argument that the enforcement notice of the zoning
officer was ineffective for absence of service upon the owner of
the premises is similarly not compelling. First, Appellant lacks
standing to raise the issue. Second, its position on the merits of
the land use issues herein has been ably advanced by its counsel;
no prejudice has been shown to have resulted to it from any
misdirection as to notice. Third, the issue as to notice does not
appear to have been argued to the Zoning Hearing Board. And,
fourth, Appellant identified itself to the Township as the
equitable owner of the premises and referred in testimony to the
preceding owner. Under these circumstances, the Court is not in a
position to afford relief to Appellant on the basis of any error in
connection with service of the enforcement notice upon a third
party.
18
No. 1996 Civil 1993
For these reasons, the following Order of Court will be
entered:
ORDER OF COURT
AND NOW, this [~ day of March, 1994, after careful
consideration of Appellant's land use appeal, and for the reasons
stated in the accompanying Opinion, the decision of the Zoning
Hearing Board of Silver Spring Township is AFFIRMED.
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Linus E. Fenicle, Esq.
Attorney for Appellant
Steven J. Weingarten, Esq.
Carol A. Steinour, Esq.
Attorneys for Appellee
:re
19