HomeMy WebLinkAbout93-0037 EquityTOWNSHIP OF SILVER SPRING, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. CIVIL ACTION - EQUITY
WELLINGTON FARMS, INC.,
Defendant NO. 37 EQUITY 1993
IN RE: PLAINTIFF'S PETITION FOR PRELIMINARY INJUNCTION
BEFORE OLER, J.
DECREE
AND NOW, this 27'dl ay of September, 1993, upon consideration of Plaintiff's
Petition for Preliminary Injunction and following a hearing, and for the reasons stated
in the accompanying Opinion, the Petition is GRANTED and the slaughter of imported
poultry not raised upon the premises at 70 Konhaus Road, Mechanicsburg,
Pennsylvania, is PRELIMINARILY ENJOINED. No bond shall be required of
Plaintiff.*
THIS DECREE shall be reviewable upon motion of either party in the event of
a favorable ruling on Defendant's Petition To Stay Action of the Zoning Hearing Board
of Silver Spring Township, at No. 1996 Civil 1993 (Cumberland Co.), and in any event
shall be superseded by any Final Decree entered upon Plaintiffs underlying complaint.
Richard C. Snelbaker, Esq.
Counsel for Plaintiff
Linus E. Fenicle, Esq.
Counsel for Defendant
rc
* See Pa. R.C.P. 1531(b)
BY THE COURT,
Wesley Ol Jr. J.
TOWNSHIP OF SILVER SPRING,
Plaintiff
V.
WELLINGTON FARMS, INC.,
Defendant
Oler, J.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
NO. 37 EQUITY 1993
IN RE: PLAINTIFF'S PETITION FOR PRELIMINARY INJUNCTION
BEFORE OLER, J.
OPINION AND DECREE
For disposition in this equity case arising out of an alleged continuing violation
of Plaintiffs zoning ordinance by Defendant is Plaintiff's petition for a prohibitory'
preliminary injunction.' A hearing on the matter was held on Thursday, September
16, 1993, and Monday, September 20, 1993. For the reasons stated in this Opinion,
the petition will be granted.
Statement of Facts
On or about February 14, 1992, the Township of Silver Spring (Plaintiff or
Plaintiff Township) in effect issued an occupancy permit to Wellington Farms, Inc.
(Defendant or Defendant Wellington Farms) for an agricultural use of the "Konhaus
Farm," at 70 Konhaus Road, Mechanicsburg, Silver Spring Township, Cumberland
1 See 18 P.L.E. Injunction §3, at 270-71 (1988) (distinction between mandatory and
prohibitory injunctions; expression of rule that mandatory injunction to be utilized more
sparingly than prohibitory injunction).
' See Pa. R.C.P. §1531 (special relief; injunctions); see also Act of July 31, 1968, P.L. 805,
§617, as amended, 53 P.S. §10617 (1993 Supp.) (authorized causes of action for enforcement
of zoning ordinance by municipality).
No. 37 Equity 1993
County, Pennsylvania.' The agricultural use as proposed by Defendant was the
"Raising, Slaughtering, Dressing and Marketing of Poultry."' However, the permission
for occupancy was obtained by Defendant by the following representation, in
clarification of the requested 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 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
" Hearing on Plaintiff's Petition for Preliminary Injunction, Plaintiff's Exhibits 3, 5
(hereinafter Plaintiff's Exhibit _).
Under Plaintiffs zoning ordinance, with certain exceptions not here relevant, a
prerequisite to "any change of use, ownership, proprietorship or occupancy within the
Township" is "site plan approval," following review by the Township planning commission and
board of supervisors, and the issuance of a new "Certificate of Occupancy." Plaintiffs Exhibit
1 (zoning ordinance), §§902, 903. Defendant obtained a waiver of site plan review, pursuant
to §902(B) of the ordinance, upon the representation discussed in the text. Plaintiff's Exhibit
4.
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 revised 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."
Plaintiff's Exhibit 1 (zoning ordinance), §901(A).
4 Plaintiff's Exhibit 3.
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No. 37 Equity 1993
birds and then slaughter the birds upon delivery.
Wellington Farms generally will be dressing only those birds
that have been raised on the property.5
This representation was consistent with prior practice on the property, located
in an AG -Agricultural zoning district,' in that any pre -zoning ordinance instances of
the slaughtering of poultry not raised on the farm were clearly secondary and highly
incidental to the primary operation of raising and slaughtering poultry grown on the
premises.' In this regard, the "farm regulations" in Plaintiff Township's zoning
ordinance, applicable to uses in AG districts,' permit the "slaughtering, dressing and
marketing of poultry," only if they are "incidental to the operation of a farm."'
Although Plaintiff Township granted Defendant a concession by permitting it
to import, temporarily, mature birds for slaughter in order to start up its operation,"
Defendant has since failed to act in accordance with the representation which resulted
in its permission for occupancy. It has, instead, maintained an operation which is
primarily a slaughterhouse for imported poultry, with any raising of polts or chicks
5 Plaintiff's Exhibit 4 (letter from an attorney for Defendant to Plaintiff's planning
commission) (emphasis added).
6 Plaintiffs Exhibit 3; Plaintiff's Exhibit 1 (zoning ordinance), art. 150.
7 See Testimony of Paul Konhaus, Hearing on Plaintiff's Petition for Preliminary
Injunction, N.T. _ - _
8 Plaintiff's Exhibit 1 (zoning ordinance), §151.1.
' Plaintiff's Exhibit 1 (zoning ordinance), §808(1)(f) (emphasis added).
io Plaintiffs Exhibit 6.
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No. 37 Equity 1993
being incidental to that use. From August to December, 1992, for instance, Defendant
imported 4000 to 9000 poultry for slaughter per week, while raising no poultry on the
premises."
On or about February 18, 1993, Plaintiff Township sent Defendant a notice of
zoning violation because of its aforesaid activity, ordering the same to cease and
desist;12 a more detailed, supplementary notice to the same effect was sent on March
1, 1993.1 Defendant appealed to the Zoning Hearing Board of Silver Spring
Township, and a hearing was held by the Board on the appeal on Wednesday, April 21,
1993.14 By Order of May 25, 1993, the Board unanimously denied the appeal."
An appeal was taken by Defendant to the Court of Common Pleas of
Cumberland County from the Board's decision, where it remains pending, but as of the
close of the record in the present case on September 20, 1993, no petition for a stay
11 Testimony George Oppenheimer, Director of Farm Operations, Wellington Farms, Inc.,
Hearing on Plaintiffs Petition for Preliminary Injunction, N.T. _ _
The failure of Defendant to act in accordance with the promise that its operation
would not include the importation of mature poultry for slaughter was attributed by
Defendant's operations director to a belated discovery that considerations involving disease in
chickens made it economically unfeasible for an enterprise of Defendant's size to raise all of
the poultry which it slaughtered on the premises. The prior Konhaus operation on the
property involved turkeys.
12 Plaintiffs Exhibit 8.
1a Plaintiff's Exhibit 9.
14 Plaintiffs Exhibit 10.
15 Plaintiffs Exhibit 10.
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No. 37 Equity 1993
of the Board's action had been granted or fRed.18 Counsel herein appear to be in
agreement that the Board's decision retains its efficacy in the absence of a stay. 17
Notwithstanding the continued effectiveness of the decision, however, Defendant has
apparently declined to abate the proscribed activity.
On September 3, 1993, Plaintiff commenced the instant action in equity for
injunctive and other relief against Defendant. Simultaneously, Plaintiff filed the
Petition for Preliminary Injunction which is the subject of the present proceeding.
Statement of Law
Several principles of law are of importance in this matter. First, with respect to
preliminary injunctions, the Pennsylvania Supreme Court has stated the general rule
as follows:
Three criteria have been established for the granting of
a preliminary injunction .... They are: (1) the preliminary
injunction must be necessary to prevent immediate and
irreparable harm which could not be compensated for by
damages; (2) greater injury would result from the denial of
the preliminary injunction than from the granting of it; and
(3) it would operate to restore the parties to the status quo
as it existed prior to the alleged wrongful conduct. In
is Stipulation of counsel, Hearing on Plaintiff's Petition for Preliminary Injunction, N.T.
_. It is understood that a petition has been filed by Defendant since the record herein was
closed; however, disposition of the petition remains pending and is a matter in a separate
proceeding. Wellington Farms, Inc. v. The Zoning Hearing Board of Silver Spring Township,
No. 1996 Civil 1993 (Cumberland County).
17 See Act of July 31, 1968, P.L. 805, §1003-A, As added, 53 P.S. §11003-A (1993 Supp.);
Memorandum of Defendant, filed September 22, 1993, at 1; Plaintiff's Post -Hearing
Memorandum, filed September 22, 1993, at 1-3.
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No. 37 Equity 1993
addition to meeting all three criteria, the court must be
convinced that [plaintiff s] right to a preliminary injunction
is clear ... and general equity jurisdiction must be
warranted.
Committee of Seventy v. Albert, 33 Pa. Commw. 44, 49, 381 A.2d 188, 190 (1977). The
"purpose [of a preliminary injunction] is to preserve the status quo ... by restoring the
last peaceable, noncontested status which preceded the controversy." Soja v.
Factoryville Sportmen's Club, 361 Pa. Super. 473, 477, 522 A.2d 1129, 1131 (1987).
Second, Defendant is in agreement with the proposition that "[t]he violation of
a zoning ordinance is irreparable harm."18 Section 617 of Pennsylvania's
Municipalities Planning Code clearly provides for injunctive — a form of equitable —
relief in the event of a zoning violation.19
Third, it appears to be equally clear that in the absence of a stay a decision of
a zoning hearing board on an appeal from a cease and desist order of the type issued
by Plaintiff remains in full force and effect. Act of July 31, 1968, P.L. 805, §1003-A,
as added, 53 P.S. §11003-A (1993 Supp.).20 Where aper se violation of a requirement
as to zoning exists, it is the rule that the general prerequisites for a preliminary
injunction are superseded by the less stringent statutory authorization for injunctive
18 Defendant's Memorandum of Law in Opposition to Plaintiff's Petition for Preliminary
Injunction, at 3 n.l.
19 Act of July 31, 1968, P.L. 805, §617, as amended, 53 P.S. §10617 (1973 Supp.).
20 See also note 16 supra and accompanying text.
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No. 37 Equity 1993
relief contained in Section 617 of the Municipalities Planning Code. Act of July 31,
1968, P.L. 805, §617, as amended, 53 P.S. §10617 (1993 Supp.); Township of Little
Britain v. Lancaster County Turf Products, 146 Pa. Commw. 211, 604 A.2d 1225
(1992).
Fourth, 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, _ (1938); see 14 P.L.E.
Estoppel §75 (1959).
Fifth, 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 Third New 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
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No. 37 Equity 1993
Webster's New Twentieth Century Dictionary 922 (2d ed. 1964).
Finally, the protection constitutionally 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). Plaintiffs zoning
ordinance expressly prohibits such changes.21
Application of Law to Facts
In the present case, the evidence has thus far demonstrated that Defendant has
established a primary operation on the premises in the form of a slaughterhouse for
imported poultry, which is (a) not a permitted agricultural use, (b) is a change in the
nature from the prior use, (c) is violative of a zoning hearing board decision which
remains binding upon Defendant, and (d) is in derogation of an express promise upon
which Plaintiff relied in permitting Defendant's occupancy. Based upon the foregoing
authority, Plaintiff's right to relief appears clear. In addition, and notwithstanding the
very capable presentation and argument of Defendant's counsel, the Court concludes
that the continuation of this activity under these circumstances represents a condition
of immediate and irreparable harm to Plaintiff Township, that to permit a violation
of this magnitude to continue would result in greater harm to Plaintiff's citizens than
that which would be occasioned to Defendant,22 and that the issuance of a
21 Plaintiff's Exhibit 1 (zoning ordinance), §815.1.
22 Defendant may, of course, continue its operation except as restricted herein.
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No. 37 Equity 1993
preliminary injunction would restore the parties to the status quo existing prior to the
alleged wrongful conduct. For all of these reasons, the following Decree will be
entered:
DECREE
14
AND NOW, this 27 day of September, 1993, upon consideration of Plaintiff s
Petition for Preliminary Injunction and following a hearing, and for the reasons stated
in the accompanying Opinion, the Petition is GRANTED and the slaughter of imported
poultry not raised upon the premises at 70 Konhaus Road, Mechanicsburg,
Pennsylvania, is PRELIMINARILY ENJOINED. No bond shall be required of
Plaintiff.*
THIS DECREE shall be reviewable upon motion of either party in the event of
a favorable ruling on Defendant's Petition To Stay Action of the Zoning Hearing Board
of Silver Spring Township, at no. 1996 Civil 1993 (Cumberland Co.), and in any event
shall be superseded by any Final Decree entered upon Plaintiff's underlying complaint.
Richard C. Snelbaker, Esq.
Counsel for Plaintiff
Linus E. Fenicle, Esq.
Counsel for Defendant
rc
*See Pa. R.C.P. 1531(b).
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr. J.
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