Appeal of Little Britain Tp. From Decision of Zoning Hearing Bd. of Little Britain Tp., Lancaster County, Pa.

• Decision Date: 06 December 1994
• Parties: In re The APPEAL OF LITTLE BRITAIN TOWNSHIP FROM THE DECISION OF THE ZONING HEARING BOARD OF LITTLE BRITAIN TOWNSHIP, LANCASTER COUNTY, PENNSYLVANIA. Lancaster County Turf Products, Inc. and Lancaster County Turf Products, L.P., Appellants.
• Court: Pennsylvania Commonwealth Court

Page 606

651 A.2d 606

In re The APPEAL OF LITTLE BRITAIN TOWNSHIP FROM THE

DECISION OF THE ZONING HEARING BOARD OF LITTLE

BRITAIN TOWNSHIP, LANCASTER COUNTY,

PENNSYLVANIA.

Lancaster County Turf Products, Inc. and Lancaster County

Turf Products, L.P., Appellants.

Commonwealth Court of Pennsylvania.

Argued Sept. 19, 1994.

Decided Dec. 6, 1994.

Randall C. Schauer, for appellants.

Elizabeth A. Hambrick-Stowe, for appellee.

Before PELLEGRINI and KELLEY, JJ., and SILVESTRI, Senior Judge.

SILVESTRI, Senior Judge.

This is an appeal by Lancaster County Turf Products, Inc. and Lancaster County Turf Products, L.P. (LCTP) from the October 12, 1993 order of the Court of Common Pleas of Lancaster County (trial court) affirming the amended decision of the Zoning Hearing Board (ZHB) of Little Britain Township (Township) dated March 12, 1992 and dismissing the appeal of LCTP.

LCTP is the owner of land in the Township zoned A-1-Agricultural District. Sometime in 1990 LCTP began to prepare and use the land to process "spent mushroom compost" which is what is left from the growing of mushrooms. The processing involves spreading the compost on land to a depth of thirty-six (36) inches, turning it periodically, allowing it to "leach" out for a period of twelve (12) to eighteen (18) months, after which it is harvested, packaged and sold as soil, primarily potting soil and top soil. This process is a continuous operation. (R.R. 196a-203a, 256a-259a.)

On February 7, 1991, Township's zoning officer issued an enforcement notice ¹ to LCTP which it timely appealed. ² On August 21, 1991 ³ the ZHB, after hearings on the enforcement notice, filed its Findings of Fact, Conclusions of Law and Decision. (R.R. 81a-116a.) Under its conclusions of law, it stated:

In the present case, the essential nature of the activity is allowing a natural process to change a relatively less desirable product into a relatively more desirable product, and then to market the more desirable product. This is clearly not industrial. It is not commercial. We find that it is one of the "agricultural uses related to the tilling of the land" and "horticultural uses related to the raising, propagating and selling of trees, shrubs, flowers and other vegetative materials", as allowed in the A-1 District.

(R.R. 106a-107a.)

and filed a decision as follows:

1. Paragraph A of the Enforcement Notice is dismissed, except as related to future compost removal operations. To that extent it is affirmed.

2. Paragraph B of the Enforcement Notice is affirmed, as modified, solely with respect to the fencing requirement of the Ordinance;

3. Paragraph C of the Enforcement Notice is affirmed with respect to the road construction which took place prior to April 8, 1991, the date Applicant applied for a building permit. To the extent Paragraph C relates to events following the Zoning Officer's denial of Applicant's request for a building permit, Paragraph C is denied.

4. Paragraph D of the Enforcement Notice is denied.

5. Paragraph E of the Enforcement Notice is denied, except as related to future compost removal operations. To that extent it is affirmed.

6. Paragraph F of the Enforcement Notice is denied, except as related to future compost removal operations. To that extent it is affirmed.

(R.R. 115a-116a.)

LCTP timely appealed, ⁴ as did the Township and Concerned Citizens of Little Britain Township (Concerned Citizens), the August 21, 1991 decision to the trial court. LCTP appealed only those matters in the enforcement order which were affirmed by the ZHB, as well as the affirmance of the denial of a permit for a truck scale.

On November 15, 1991, prior to any action on the three appeals before the trial court, Concerned Citizens filed a motion, joined in by Township, with the trial court seeking to admit into evidence orders of the Department of Environmental Resources (DER) dated July 25, 1991 as amended August 14, 1991, and a report by one Dr. Nathaniel Cobb (Cobb) for the Center for Disease Control of Atlanta, Georgia (CDC).

LCTP filed an answer to Concerned Citizens' motion; the trial court, after argument, on January 3, 1992 entered an order ⁵ remanding the case to the ZHB [F]or the purposes of conducting a further hearing or hearings to consider as evidence in this land use matter the orders of the Pennsylvania Department of Environmental Resources dated July 25, 1991 and August 14, 1991.

(R.R. 174a.)

and further ordered that Concerned Citizens and Township:

[M]ay present evidence with respect to the findings of the Center for Disease Control ... with respect to the land and/or the compost in question.

(R.R. 174a.)

Following a remand hearing, the ZHB, on March 12, 1992, filed an "Amended Decision" ⁶ from which LCTP timely filed an "amended appeal" to the trial court. ⁷

In its original March 4, 1991 appeal from the enforcement notice to the ZHB, LCTP specifically asserted that it had acquired vested rights and/or a variance by estoppel, (R.R. 18a-19a, 28a-29a) and requested the zoning officer be reversed by reason thereof (R.R. 82a); however, neither in its findings of fact, nor its conclusions of law, nor in its decision, did the ZHB address LCTP's claim of vested right/variance by estoppel.

In LCTP's original appeal to the trial court on September 20, 1991 from portions of the ZHB decision of August 21, 1991, it asserted in paragraphs 9(f) and (g) that the ZHB erred,

(f) by failing to failing [sic] to find that LCTP has acquired a vested right in the use of the Property because of its exercise of due diligence, good faith, expenditure of substantial and unrecoverable sums, and the lack of adverse impact of the activity on the public interest;

(g) by failing to find that LCTP is entitled to a variance by estoppel due to the fact that the Township acquiesced in the alleged illegal use, LCTP acted in good faith and, in relying upon the acquiescence of the Township, and expended substantial sums of money to purchase the Property and to proceed with the use of the Property; ...

(R.R. 10a.)

In its amended notice of appeal, on April 13, 1992, to the trial court from the ZHB's amended decision of March 12, 1992, LCTP incorporated by reference its appeal of September 20, 1991 from the ZHB's decision of August 21, 1991. (R.R. 177a.)

The trial court, by order dated October 12, 1993, affirmed the March 12, 1992 order of the ZHB and dismissed the appeal of LCTP. ⁸ LCTP timely appealed the trial court's October 12, 1993 order to this Court. In its statement of questions involved, LCTP, as summarized, presents the following three issues for our consideration: (1) whether the trial court erred in basing its opinion, in part, upon the decision of this Court in the case of Little Britain v. Lancaster County Turf Products, Inc. and Lancaster County Products, L.P., 146 Pa.Commonwealth Ct. 211, 604 A.2d 1225 (1992) (Township Equity Case), in which we reversed the trial court's refusal to continue an ex parte preliminary injunction and directed reinstatement of the preliminary injunction, preliminarily restraining LCTP ⁹ from carrying on activities on the land without first obtaining permits; (2) whether the trial court erred in allowing the Township and Concerned Citizens to reopen the proceedings before the ZHB for the purpose of introducing hearsay evidence from the DER and CDC; and (3) whether the ZHB and the trial court erred in upholding the enforcement order and in otherwise failing to find that LCTP's use of the property was a permitted use under the ordinance.

We first address whether the trial court was in error in holding that our decision in the Township Equity Action was a final decision on the merits of LCTP's claim that it had acquired "vested rights/variance by estoppel", thus precluding it from raising that issue in this proceeding.

In the Township Equity Action, the Township, on March 8, 1991 filed a complaint in equity pursuant to Section 617 ¹⁰ of the Municipalities Planning Code (MPC) ¹¹ to enjoin LCTP's use of its property by reason of its violation of Section 904 of its ordinance relating to the necessity for obtaining permits prior to the use and occupancy of the land. The trial court, upon motion of the Township, granted an ex parte preliminary injunction. ¹² Following a hearing on the continuance of the ex parte preliminary injunction, the trial court "denied plaintiff's (Township's) petition for a preliminary injunction" and vacated the grant thereof. We vacated the trial court's order and remanded with directions to reinstate the preliminary injunction.

The trial court committed error in holding that our decision and order in the Township Equity Action, not being appealed to our Supreme Court, constituted a final judgment. The trial court overlooked the nature of the proceeding of an action in equity wherein a preliminary injunction is sought, either ex parte or after hearing on a request therefor pending final hearing. A preliminary injunction is to put and keep matters in the position in which they were before the improper conduct of the defendant commenced. Pennsylvania Public Utilities Commission v. Israel, 356 Pa. 400, 52 A.2d 317 (1947); Audenried v. Philadelphia & R.R. Co., 68 Pa. 370, 8 Am.Rep. 195 (1871). The sole object of a preliminary injunction is to preserve the subject of the controversy in the condition in which it is when the order is made, it is not to subvert, but to maintain the existing status until the merits of the controversy can be fully heard and determined. Mahanoy Township Authority v. Deaper, 356 Pa. 573, 52 A.2d 653 (1947). In the hearing upon a preliminary injunction, it is neither necessary nor proper to decide the case as though on final hearing. Crestwood School District v. Topito, 76 Pa.Commonwealth Ct. 321, 463 A.2d 1247 (1983). A preliminary injunction cannot serve as a judgment on the merits since by definition it is a temporary remedy granted until that time when the party's dispute can be...