IN THE COMMONWEATH COURT OF PENNSYLVANIA

William Sowich and Nancy Sowich :

:

v. :

: The Zoning Hearing Board of Brown : Township and Edgewood Estates, Inc. :

:

v. :

: The Zoning Hearing Board of Brown : Township :

:

v. : No. 1555 C.D. 2019 : Argued: December 7, 2020 Brown Township :

: Appeal of: Edgewood Estates, Inc. :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge 1

HO NORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

OPINION

BY PRESIDENT JUDGE LEAVITT FILED: January 26, 2021

Edgewood Estates, Inc. (Landowner) has appealed an order of the Court

of Common Pleas of Mifflin County (trial court) following a re mand from this Court.

The issue before this Court is whether Landowner’s use of the property for cru shing

and grinding stone was a lawful nonconforming use that pre dated the restrictions in

the Brown Township Zoning Ordinance (Zoning Ordinance). 2 The trial court held

1 This case was assigned to the opinion writer before January 4, 2021, when Judge Leavitt completed her term as President Judge.

2 B ROWN T OW NSHIP Z ONING O RDINANCE (2011).2

that evidence of this use by Landowner’ s predecessor did not entitle Landowner to

continue this use. Concluding that the trial court erred, we reverse

. Backgroun d

The relevant facts and procedural history in this case are as follows.

Since 2006, Landowner has owned a 23

- acre property in Brown Township

(Township). The Township’s 1979 Zoning Ordinance placed the northwestern part

of Landowner’s property in the R

- 1 (Rural Residential) Zoning District and the

southeastern part of the prop erty in the C (Commercial) Zoning District. In February

of 2011, the Township amended the Zoning Ordinance, placing the entire property

in the R

- 1 Zoning District, with the exception of a 500

- foot

- wide strip abutting Route

322, which is zoned Commercial.

On September 28, 2015, the Township’s zoning officer issued a notice

of violation to Landowner for several activities conducted on the property including

“[g]rinding [s]tone to make small stones from large stones [

. ] ” Reproduced Record

at 3a (R.R.__). Th e notice stated that grinding stone is not permitted under the 2011

Zoning Ordinance

, which limits the “permitted by right” uses in the R

- 1 District to

the following:

• Agriculture

• Cemetery

• Emergency Services

• Forestry

• House of Worship

• Municipal Building, Pa rk or Playground

• Single Family Detached Dwelling3 • Vacation Home

Z ONING O RDINANCE §502(1) ; R.R. 595a

.

Landowner appealed to the Zoning Hearing Board (Zoning Board)

, asserting that its activities were lawful nonconforming uses that predated the 2011

amendment to the Zoning Ordinance. On November 23, 2015, the Zoni ng Board

held a hearing, granting intervention to William and Nancy Sowich (Objectors)

,

owners of an adjacent property.

Michael Watson, president and owner of Landowner, testified that his

company acquired the property from Trumbull Corporation on April 7, 2006. When

Trumbull built a section of Route 322 in early 2000, it dumped the constru ction

debris on the property. Accordingly, w hen Landowner took possession of the

property, there was a 40

- foot pile of fill consisting of “[c]oncrete, rock, topsoil,

concrete pipe, broken concrete barriers, [and] concrete from highway [

. ] ” Notes of

Testimony (N.T.), 11/23/2015, at 34; R.R. 173a. This 40

- foot

- tall pile sat on top of

another pile of ag gregate. Watson testified that Landowner uses the property to

“haul in fill, to take fill out, to store various construction material[s], as a stock yard.”

Id. at 52; R.R. 191a.

Watson testified that Landowner has crushed stone on the property

three ti mes since its acquisition in 2006: in the spring of 2015, sometime in 2013,

and “[o]ne other time before that.” Id. at 60; R.R. 199a. The crushing was necessary

to “break the rocks down to smaller rocks” for different uses in Landowner’s

landscaping and construction business. Id. at 61; R.R. 200a.

Before the Zoning Board , Landowner argued that the activities cited in

the notice of violation

, including stone crushing and grinding

, were comparable to4

those conducted at a sawmill or a planing mill

, which use was expressly permitted

in the R

- 1 District under the 1979 Zoning Ordinance. In support, Watson testified:

[Counsel]: And can [the property] be used as forestry uses?

[Watson]: Yes.

[Counsel ] : In what manner?

[Watson ] : You could put the same thing, yo u could grind mulch there, you could haul mulch in everyday, you could haul logs in

. You can have a sawmill in there.... Because it does have a good

base for that.

[Counsel ] : To do those kind of uses would [] require putting some kind of heavy machinery in there?

[Watson ] : Yes.

[Counsel ] : And require trucks coming in?

[Watson ] : Yes.

Id. at 67

- 68; R.R. 206a

- 07a.

By decision of January 7, 2016, the Zoning Board concluded

, inter alia

, that Landowner’s use of the property for crushing and grindin g stone w as not a

lawful nonconforming use because it had been abandoned, noting that Watson

testified that Landowner had ground stone only three times since 2006

. The Zoning

Board concluded , however, that depositing and removing fill was a lawful

nonconf orming use

. Landowner appealed to the trial court and argued, inter alia , that the

Zoning Board erred in finding that crushing and grinding stone was a use different

from depositing and removing fill. Landowner filed a motion to present additional5

evide nce on the question of whether stone crushing was a preexisting

nonconforming use.

The trial court granted Landowner’s motion and remanded the matter

to the Zoning Board to take additional evidence , which it did on May 30, 2017. At

the hearing, Watson t estified that both Landowner and the prior owner , Trumbull,

had deposited “large pieces of concrete,” “broken

- up concrete,” “large rocks, small

rocks, fill dirt, shelling material, topsoil, asphalt,” and “construction materials [such

as] pipe, catch basins ” on the property. N.T., 5/30/2017, at 11; R.R. 381a.

Landowner sold these materials for the construction of houses, truc k garages, roads,

and log yards . T he rocks cannot be removed, in many cases, or used without first

grinding and crushing them. Id. at 26; R.R. 396a. Watson testified in pertinent part :

[Counsel ] : Have you [crushed rocks] periodically since you purchased the property?

* * *

[Watson ] : We have done that, like I said, I busted up stuff with my hammer on the hoe to get it smaller to get it out of there and

we have crushed.

[Counsel ] : Have other people also crushed for you?

[Watson ] : Yes.

[Counsel ] : Or crushed there?

[Watson ] : Yes.

* * *

[C ounsel]: [Y]ou seem to distinguish between grinding of stone

into small stone an d fill. What is the difference [?]

[Watson]: The fill we can use on the bottom, but we always need something to cover it, so you can grab on. The only reason I6 haven’t groun ded anything, is I still have some left from the last time I grinded there, so I don’t need any at this point.

Id. at 22, 40; R.R. 392a, 410a. Landowner submitted business invoices , two of

which, dated May 7, 2013, and April 6, 2015, showed that Landowner contracted

with Reiff Brothers Excavating for stone crushing.

Numerous witnesses testified about their past business transactions

with Landowner. Relevant here, t he owner of Fultz Construction Hauling testified

that he had been to the property “many times” since Landowner acquired the

property, and he saw trucks “bringing in or removing materials” and “the crusher

out there operating” “a couple [of] times.” N.T.

, 5/30/2017, at 75; R.R. 445a. The

owner of a farm adjacent to Landowner’s property testi fied that he observed “a

crusher sitting [on the property] ” several times, with the first appearance taking place

“[p]robably about 2010 or 2011 [

. ] ” Id. at 80; R.R. 450a. A former employee of

Landowner, Matthew Fisher, testified that between 2007 and 201 4, he “sorted rock

out,” “hauled material in, loaded the crusher, [and] piled the crushings up in piles [

. ] ”

Id. at 98; R.R. 468a. An employee of Metzler Forest Products

, Jamie Fultz, testified

that when Landowner pur chased the property he “helped p ut the development in

there” and operated heavy equipment. Id

. at 87; R.R. 457a. More specifically, he

testified:

[Counsel]: Did you ever operate equipment yourself there?

[Fultz]: Yes, trackhoes, dozers, everything.

* * *

[Counsel]: How about hammers, break up rock?

[Fultz]: Hammers, yes.

[Counsel]: Grinding operation?7 [Fultz]: I don’t

– I just remember Trumbull[]. I don’t remember.

That must have been after I was employed at Metzler’s.

[Counsel]: So you don’t

– during up to 2007, I think you said you left?

[Fultz]: [Yes].

[Counsel]: The two

- year period that [Landowner] owned it, he

didn’t have any grinding there that you recall?

[Fultz]: N ot that I recall of.

[Counsel]: But you said before that you remember it?

[Fultz]: I remember Trumbull had a cr ush er in there.

[Counsel]: Okay. Do you know when that would have been?

[Fultz]: W ell, it would have been around [19]97

- [] 98

.

Id. at 8 7

- 8 8; R.R. 45 7a

- 5 8a.

The Zoning Board did not issue a written decision with findings of fact

on the additional evidence. Instead, it “ transmitted [the record] to the [trial court]

for further proceedings.” Id. at 8; R.R. 378a.

By order and opinion dated April 16, 2018, the trial court affirmed the

Zoning Board decision of January 7, 2016

. It concluded

, inter alia

, that the use of

the property for crushing and grinding stone had been abandoned. Section 1805(5)

of the Zoning Ordinance provides that where a nonconforming use has ceased for a

period of two years, the property must thereafter be used in conformity with the

Zoning Ordinance. Z ONING O RDINANCE §1805(5) ; R.R. 755a

. The trial court

reasoned that although Landowner had ground stone on the property three times

since 2006, this did not establish that “the grinding had been an ongoing operation

at any time in the past.” Trial Court Opinion, 4/16/2018, at 8; R.R. 104a. Neither8

t he trial court nor the Zoning Board decided whether Landowner’s use of the

property for crushing and grinding stone constituted a lawful nonconforming use.

This Court’s July 29, 2019, D ecision

Landowner appealed to this Court. By decision and order of July 29,

2019, this Court held, inter alia , that the trial court erred in affirming the Zoning

Board’s determination that Landowner had abandoned the grinding use because

there was no evidence that Landowner intended to abandon this use and actually did

abandon it. Sowich v. Zoning Hearing Board of Brown Township , 214 A.3d 775,

786 (Pa. Cmwlth. 2019) (citing Latrobe Speedway, Inc. v. Zoning Hearing Board of

Unity Township , 686 A.2d 888 , 890 (Pa. Cmwlth. 1996))

. The trial court did not

find whether or no t stone grinding operations existed before 2011. Nor did it find

whether this activity was substantially similar to a sawmill and planing mill. The

1979 Zoning Ordinance permitted a “s awmill [and] planing mill” in the R

- 1 District

and any other “service or use” “substantially similar to” those described therein.

Former Zoning Ordinance §502.A(2), 502.A(11) ; R.R. 796a

- 97a. The question was

whether Landowner’s operation was similar to a sawmill and plan ing mill operation

and, as such, lawful under the 1979 Zoning Ordinance. Accordingly, this Court

remanded the matter to the trial court to make the necessary findings of f act based

on the existing record as supplemented by the additional evidence presen ted at the

May 30, 2017, hearing before the Zoning Board

. Sowich , 214 A.3d at 790.

Trial Court’s October 4, 2019, Decision

On remand, the trial court held that Landowner did not establish that

stone crushing and grinding took place on the p roperty prior to 2011. Watson

testified that he had crushed stone on the property three times since 2006: in the

spring of 2015, sometime in 2013, and “[o]ne other time before that.” N.T.,9

11/23/2015, at 60; R.R. 199a. Two invoices submitted by Landowner showed that

stone crushing was done o n the property in May 2013 and April 2015 . Other

invoices presented by Landowner did not relate to stone crushing. The trial court

further found that the witnesses who testified at the May 30, 2017, remand hearing

before the Zoning Board could not definitively “place the crushing operation prior

to 2011

. ” Trial Court Opinion, 10/4/2019, at 2

- 3 ; R.R. 917a

- 18a

. Although Fultz

testified that he saw “a crush er ” on the property in 1997 or 1998, the trial court

explained that “[t]his crushing was done by a prior owner of t he property ” and, thus,

irrelevant

. Id . at 4; R.R. 919a.

The trial court further found that “[l]ittle to no testimony” was

presented as to whether the stone grinding operation was substantially similar to

those conducted at a sawmill and planing mill as allowed under the 1979 Zoning

Ordinance. Id. at 4; R.R. 919a. Watson testified that both his operation and a

sawmill required heavy machinery and trucks. T he trial court opined th at the use of

heavy machinery “is not exclusive to this industry and the [trial c ourt ] cannot

speculate as to any further similarities.” Id. at 5; R.R. 920a. The trial court held that

Landowner did not establish that grinding stone on the property was a lawful use

under the 1979 Zoning Ordinance

.

On October 23, 2019, Landowner filed a motion for reconsideration,

which the trial court denied on October 29, 2019. Landowner appeale d to this Court

on November 4, 2019.10 Appeal

On appeal, 3 Landowner argues that the trial court erred in holding that

Landowner’s use of the property for grinding stone did not constitute a lawful

nonconforming use. Landowner presented testimony that g rinding stone occurred

on the property at least as early as the 1990s. The fact that stone grinding too k place

under prior ownership was irrelevant to this analysis . A lawful nonconforming use,

once established, is “a property right of constitutional dim ensions,” which “follows

the property upon sale to a new owner.” Landowner Brief at 17. Further, Watson

testified that stone crushing involved equipment and operations similar to those used

in a sawmill operation

. He pointed out that mulching wood is si milar to crushing

stone, and bot h involve large machinery and trucks. The trial court did not discredit

Watson’s testimony, and neither the Township nor Objectors presented any contrary

evidence on this question or even cross

- examine d Watson

. As such, La ndowner

argues that the trial court erred and abused its discretion in concluding that stone

crushing or grinding was not sub stantially similar to a sawmill operation, which was

a use expressly allowed under the 1979 Zoning Ordinance in the R

- 1 District

.

3 Where the trial court does not accept additional evidence, this Court determines on review

whether the zoning b oard committed an error of law or “a manifest abuse of discretion.” Valley
View Civic Association v. Zoning Bo ard of Adjustment , 462 A.2d 637, 639 (Pa. 1983). A zoning board abuses its discretion “only if its findings are not supported by substantial evidence.” Id . at 640. Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id

. However, where the trial court accepts additional evidence, we must determine whether

the trial court abused its disc retion or committed an error of law. Crystal Forest Associates, LP v. Buckingham Township Supervisors , 872 A.2d 206, 212 n.11 (Pa. Cmwlth. 2005). In addition, where a trial court accepts additional evidence concerning only a single issue, the court is no t required to hear the entire matter on its merits, and may consider only that specific issue de novo

. Id. ; Cherry Valley Associates v. Stroud Township Board of Supervisors , 554 A.2d 149, 151 (Pa.
Cmwlth. 1989).11 Objectors respond that Landowner carries the burden of establishing a

lawful nonconforming use, and it did not demonstrate that stone crushing and

grinding occurred before the enactment of the 2011 Zoning Ordinance

. They also

conten d that Landowner had the burden to demonstrate that a stone crushing

operation has “characteristics in common to a great or significant extent” with a

sawmill operation , and it did not meet its burden . Objectors ’ Brief at 10.

Analysis

A lawful nonconf

orming use is a use that predates the enactment of a

prohibitory zoning restriction. Hafner v. Zoning Hearing Board of Allen Township

, 974 A.2d 1204, 1210 (Pa. Cmwlth. 2009). The ability to maintain a nonconforming

use is “only available for uses that we re lawful when they came into existence and

which existed when the ordinance took effect.” Id. at 1210

- 11. “Preexisting illegal

uses cannot become nonconforming uses.” Id . at 1211.

The burden of pr oving the existence of a nonconforming use lies with

the property owner. Jones v. Township of North Huntingdon Zoning Hearing Board

, 467 A.2d 1206, 1207 (Pa. Cmwlth. 1983). To establish a prior nonconforming use,

t he property owner must provide “objective evidence that the subject land was

devoted to such use at the time the zoning ordinance was enacted.” Smalley v.

Zoning Hearing Board of Middletown Township , 834 A.2d 535, 538

- 39 (Pa. 2003).

Satisfying this burden requires conclusive proof by way of objective evidence of the

precise extent, nature, time of creation and continuation of the alleged

nonconforming use .” Jones , 467 A.2d at 1207. When acting as factfinder, “ it is the

province of a trial court to weigh conflicting testimony and determine credibility. ”

D’ E milio v. Board of Supervisors, T ownship of Bensalem

, 628 A.2d 1230 , 1233 (Pa.12

Cmwlth. 1993). The trial court is “ free to reject even uncontradicted testimony it

finds lacking in credibility. ” Id.

Here, t o establish a nonco nforming use, Landowner had to prove
, first

, that the property was used for stone crushing and grinding prior to enactment of the

Zoning Ordinance in 2011. In support, Landown er presented testimony of numerous

witnesses on the grinding operations on the property. Specifically, Fultz testified

that he remembered seeing a crusher o n the property in 1997 or 1998. Fultz’s

testimony wa s not rejected as incredible; i nstead , the tri al court reasoned that “[t]his

crushing was done by a prior owner of the property ” and, thus, irrelevant

. Trial

Court Opinion, 10/4/2019, at 4; R.R. 919a. Landowner argues that the trial court

erred in holding that the prior owner’s use was ir relevant. A nonconforming use,

once established, becomes a vested property right and follows the property. It is not

personal to the owner. We agree

.

“A lawful non conforming use establishes in the property owner a

vested property right which cannot be abrogated or destroyed unless i t is a nuisance,

it is abandoned or it is extinguished by eminent domain.” Keystone Outdoor

Advertising v. Department of Transportation, 687 A.2d 47

, 5 1 (Pa. Cmwlth. 1996);

DoMiJo, LLC v. McLain , 41 A.3d 967 (Pa. Cmwlth. 2012) (prope rty owner was not

precluded from continuing nonconforming use of its property on the basis that it

failed to timely re

- register the use after purchasing the subject property). “As such,

a property owner’ s right to continue operating a legal nonconforming use on its

property is an interest that runs with the land , so long as the use is not abandoned .”

DoMiJo , 41 A.3d at 972 (emphasis added)

.

T he trial court erred in holding that the prior owner’s use of the property

for grinding and crushing stone w as ir relevant. The trial court accepted the fact that13

stone crushing and grinding took place between 1997 and 1998, and this established

that this use took place prior to the e nactment o f the 2011 ordinance. This

non conforming use ran with the land and, thus, Landowner was permitted to

continue the use after its acquisition of the property in 2006.

We turn next to the question of whether stone crushing was a lawful

use of the property under the 1979 Zoning Ordinance , which did not expressly permit

rock c rushing. It did permit a “sawmill [ and ] plan ing mill

, ” as well as any use

“substantially similar to ” a sawmill and pla ning mill. Former Z ONING O RDINANCE

§502.A (2), 502.A (11 ). Watson t estified that a sawmill involved the operation of the

same type of hea vy equipment and trucks

, noting that mulching wood was similar to

crushing and grinding stone . Both involve grinding and hauling and “ require trucks

coming in .” N.T., 11/23/2015, at 67

- 68; R.R. 206a

- 07a.

Watson testified without contradi ction or even cross

- examination that

the two uses were substantially similar. The trial court did not find Watson’s

testimony incredible ; rather, it found the testimony inadequate

, noting that the use

of heavy machinery “is not exclusive to this industry.” Trial Court Opinion

,
10/4/2019, at 5; R.R. 920a. This is true, but the point of the similarity inquiry is to

measure the impact of the use, such as “ overcrowding of land, blight, danger and

congestion in travel and transportation, loss of health, life or proper ty from fire,

flood, panic or other dangers. ” Z ONING O RDINANCE §103(B)(2) (regarding p urpose

and community development o bjectives of the Zoning Ordinance) ; R.R. 559a

. See

also Frederick v. Allegheny Township Zoning Hearing Board , 196 A.3d 677 (Pa.

Cmwlth. 2018) ( stating that “ z oning regulates the use of land and not the particulars

of developments and construction ” ) (quotation omitted)

. Landowner did not need14

to provide a technical assessment o f the similarities in the business models of a stone

gr inding and sawmill operation, as suggested by the trial court and Objectors.

Both a sawmill and stone grinding operations are quasi

- industrial

activities that take place in rural areas. Watson’s testimony showed that both

activities produce the same impac t upon the use of land in terms of truck traffic and

noise, and both involve the presence of workers to operate the heavy equipment

. Neither the Township nor Objectors challenged Watson’s testimony or presented

contrary evidence to show a difference in th e uses, and the t rial court did not discredit

Watson’s testimony. The trial court abused its discretion in holding that

Landowner’s evidence on the similarity between stone grinding and sawmill

operation was inadequate.

Conclusion

In sum, the trial court erred in holding that Landowner’s use of the

property for grinding stone did not constitute a lawful nonconforming use. The trial

court found that stone crushing and grinding took place between 1997 and 1998, and

this finding established that the grinding use took place prior to the enactment of the

2011 Zoning Ordinance

. Further, Land owner presented uncontroverted evidence

that both stone crushing and sawmill operation s produce a substantially similar

impact upon the use of land in terms of truck traffic and noise, and the trial court did

not find th at evidence incredible. Landowner’s evidence established that a grinding

operation was lawful under the 1979 Zoning Ordinance.

For these reasons, we reverse the trial court’s October 4, 2019, d ecision.

_____________________________________ MARY HANNAH LEAVITT, President JudgeIN THE COMMONWEATH COURT OF PENNSYLVANIA

William Sowich and Nancy Sowich :

:

v. :

: The Zoning Hearing Board of Brown : Township and Edgewood Estates, Inc. :

:

v. :

: The Zoning Hearing Board of Brown : Township :

:

v. : No. 1555 C.D. 2019

: Brown Township :

: Appeal of: Edgewood Estates, Inc. :

O R D E R

AND NOW, this 26 th day of January , 2021, the order of the Court of

Common Pleas of Mifflin County, dated October 4, 2019, in the above

- captioned

matter is REVERSED.

_____________________________________ MARY HANNAH LEAVITT, President Judge