Collier Stone Co. v. Zoning Hearing Bd. for Tp. of Collier

• Decision Date: 08 April 1998
• Parties: COLLIER STONE COMPANY, v. ZONING HEARING BOARD FOR THE TOWNSHIP OF COLLIER, v. TOWNSHIP OF COLLIER, Appellant.
• Court: Pennsylvania Commonwealth Court

Page 123

710 A.2d 123

COLLIER STONE COMPANY, v. ZONING HEARING BOARD FOR THE TOWNSHIP OF COLLIER, v. TOWNSHIP OF COLLIER, Appellant.

Commonwealth Court of Pennsylvania.

Submitted on Briefs Feb. 27, 1998.

Decided April 1, 1998.

As Amended April 8, 1998.

John Linkosky, Pittsburgh, for appellee.

Michael B. Kaleugher, Carnegie, for appellant.

Before DOYLE and SMITH, JJ., and NARICK, Senior Judge.

NARICK, Senior Judge.

The issue in this appeal is whether the decision of the Zoning Hearing Board (ZHB) of the Township of Collier is supported by substantial evidence. The ZHB held that Collier Stone Company (Collier Stone) failed to prove that it has operated a pre-cast concrete manufacturing operation on its property since 1948, which would have been four years prior to enactment of the zoning ordinance, and thus, the operation does not qualify as a non-conforming use. Because the ZHB's decision is supported by substantial evidence, the decision of the Court of Common Pleas of Allegheny County (trial court), which reversed the ZHB, is reversed.

Collier Stone currently operates a surface mine and stone quarry business on its property in Collier Township. In 1995, Collier Stone applied for a permit to use a portion of its property to manufacture pre-cast concrete products, which it actually was already manufacturing on the property for some period of time, the length of which is the basis of this dispute. The permit was denied by the Township's zoning officer, and Collier Stone appealed to the ZHB, arguing that it has been manufacturing pre-cast concrete products since 1948 and thus, the manufacturing constitutes a legal non-conforming use because the Township did not enact a zoning ordinance prohibiting such use until 1952.

At the hearing before the ZHB, Collier Stone presented the testimony of three Collier Stone executives, who testified that Collier Stone has manufactured pre-cast concrete products on its property since 1948. Collier Stone also offered into evidence invoices and purchase orders for concrete which were dated as early as 1970, thus implying that the concrete was used in manufacturing the pre-cast concrete products. In opposition to Collier Stone's appeal, several neighboring property owners testified that no manufacturing activity occurred on Collier Stone's property prior to 1985. One property owner entered into evidence a document prepared by Collier Stone that states that Collier Stone has manufactured concrete products from 1958 to the present.

The ZHB concluded that Collier Stone failed to prove that it has manufactured pre-cast concrete products on its property since 1948, based on three factors. First, neighboring residents credibly testified that no manufacturing occurred on Collier Stone's property prior to 1985. Second, Collier Stone was unable to produce any documentation suggesting that concrete products were manufactured as early as 1948, although they did have documentation which showed that they may have performed such manufacturing as early as 1970. And third, Collier Stone's own document states that they began manufacturing concrete products in 1958.

The trial court subsequently reversed the ZHB, on the following grounds:

[E]ven taken as entirely true the testimony of the objectors [i.e., neighboring property owners] is not dispositive.... At best, the testimony establishes that any concrete operation at the site was not evident to a casual observer on the perimeter of the property. To demonstrate that a use is not apparent to its neighbors is not the same as establishing that it does not exist.... Thus, even accepted in its entirety, the Objectors' testimony is not sufficient to defeat Collier's claim of nonconforming use. (Emphasis in original.)

Resolution of this case rests upon two well-established principles of law. First, the burden of proving the existence of a non-conforming use [i.e., a use that existed prior to the adoption of the zoning ordinance prohibiting such use] rests with the landowner asserting a non-conforming use. Appeal of Lester M. Prange, Inc., 166 Pa.Cmwlth. 626, 647 A.2d 279 (1994). Second, where the trial court receives no...