Fayette County v. Cossell
| Decision Date | 25 June 1981 |
| Citation | 60 Pa.Cmwlth. 202,430 A.2d 1226 |
| Parties | COUNTY OF FAYETTE, Appellant, v. Raymond E. COSSELL and Charlotte Cossell, his wife, and Robert E. Cossell, Jr. and Ruth Ann Cossell, his wife, Appellees (two cases). |
| Court | Pennsylvania Commonwealth Court |
Argued May 6, 1981. [Copyrighted Material Omitted]
Philip T. Warman, Uniontown, for appellants in both cases.
Murray I. Horewitz, Connellsville, Thomas A. Bowlen, Uniontown, for appellees in both cases.
Before CRAIG, MacPHAIL and PALLADINO, JJ.
The County of Fayette (county) appeals from a decision of the Fayette County Court of Common Pleas affirming a chancellor's order dismissing the county's complaint in equity which sought an injunction against the operation of an automobile recycling center by appellees, the Cossells, on their property.
In January 1978, the Cossells purchased the property involved. Under the Fayette County Zoning Ordinance, which became effective on October 16, 1968, the property is located in an M-1 Light Industrial Zone. Operation of an automobile recycling (junk) business is a forbidden use in an M-1 district, but the Cossells have been operating that business on the premises.
The chancellor found that, from a period pre-dating the zoning ordinance until the Cossells purchased the property, Mr Rose, an adjacent landowner, had used 40% of the land at issue to store junked automobiles. Although Mr. Rose did not have a lease or any other formal permission from the Cossells' predecessor in title to use the property to store junked vehicles, the trial court held that Mr. Rose's use of the property established a nonconforming use in the nature of an auto junkyard which the Cossells had a right to continue.
The Fayette County Zoning Ordinance defines non-conforming use as "any lawful use of a building or land existing at the effective date of adoption or amendment of this ordinance and which does not conform to the regulations of the district in which it is situated." We note the phrase "lawful use" in that definition.
The county contends that Mr. Rose's encroachment could not be used to establish a nonconforming use because it was trespassing and hence unlawful in that respect. We cannot agree.
Zoning regulations "concern the physical use to which the land is put." See Sears Roebuck and Co. v. Power, 390 Pa. 206, 134 A.2d 659 (1957) (). Zoning laws, enactments under the police power, are not concerned with method of ownership of property. See Kaufman and Broad, Inc. v. Board of Supervisors of West Whiteland Township, 20 Pa.Cmwlth 116, 340 A.2d 909 (1975) (). Zoning ordinances regulate usage; if a use is permitted, a municipality may not regulate the manner of ownership of the legal estate. See Goldstein v. Upper Merion Township, 44 Pa.Cmwlth. 201, 403 A.2d 211 (1979) ( that the exercise of an option is irrelevant to zoning).
Here the county does not contend, nor does the record indicate, that storage of junked automobiles on the property was unlawful as an activity or land use before the zoning ordinance became effective. In the case before us, the only unlawful aspect was Mr. Rose's possession of the property without the owner's permission.
Zoning law has no application to the resolution of disputes between private parties over real estate interests. Our Supreme Court and this court have enunciated that principle in analogous cases holding that zoning status is unaffected by building and use restrictions created by private contract, and, if they are violated, the remedy is enforcement of the restrictions in a court by the persons entitled to enforcement, not by way of zoning proceedings. In Re Yocum, 393 Pa. 148, 141 A.2d 601 (1958) (); In Re Michener, 382 Pa. 401, 115 A.2d 367 (1955) (); and Calvanese v. Zoning Board of Adjustment, 51 Pa.Cmwlth. 152, 414 A.2d 406 (1980) (restrictions no basis for zoning hearing board jurisdiction). Therefore, we hold that the existence of a nonconforming use is not affected by the user's title or possessory rights in relation to the owner of the land.
Consequently, we are convinced by the record before us that a nonconforming junkyard use exists as to the property. Once a nonconforming use has been established, it runs with the land and the continued right so to use the land is not confined to any one individual. Eitnier v. Kreitz Corp., 404 Pa. 406, 172 A.2d 320 (1961). See also In Re E & G Auto Parts, 22 Pa.Cmwlth. 171, 348 A.2d 438 (1975).
Because the zoning ordinance here involved does not...
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