Biggan v. Foster Township Zoning Hearing Board
Biggan v. Foster Township Zoning Hearing Board
Opinion of the Court
This is an appeal from the order of the Court of Common Pleas of Luzerne County, by the appellant, Michael Biggan,
Appellant and his son, Paul Biggan, are engaged in the junkyard business on .454 acres of land owned by Michael Biggan. The junkyard is located in a residential neighborhood in Foster Township, Luzerne County. On October 3, 1975, upon complaints of neighbors of the appellant, the Township Zoning Officer issued appellant a cease and desist order instructing him to cease all junkyard activities on the land. The neighbors had complained about the burning, storing and crushing of junk cars which appellant was allegedly performing on said .454 acres of land and on four acres of land located across the roadway from his tract. On January 16, 1976, the Township Zoning Hearing Board upheld the action of the Zoning Officer. Appellant then appealed the matter to the Court of Common Pleas of Luzerne County and on July 16, 1976 that court handed down an order which affirmed in part and reversed in part the order of the Zoning Board. The court found that the Biggans had been using his .454 acres as a junkyard since the late 1950’s. This antedated the township zoning ordinance which was enacted in 1967. Therefore, Biggan’s use of his land as a junkyard was a lawful non-conforming use. The court also found that in 1974 appellant began to use a four acre tract located across the road from his .454 acre tract in order to carry on the junkyard activities which included the burning, curring and crushing of the junked vehicles. After hearings on the matter, the court below ordered appellant to cease all junkyard activities on the four acres of land across the roadway from his tract. The court, however, reversed the zoning board’s decision regarding appellant’s .454 acre tract and held it to be a lawful, nonconforming use. The court then ordered appellant to fence or screen the .454 acre tract as required by the 1967 zoning
On March 14,1978, the court below entered another order giving appellant thirty (30) days to survey their property to establish the boundaries of their .454 acre tract, to erect a fence around their property and to confine their junkyard activities to that specific area. On June 2, 1978 a hearing was held before the lower court regarding appellant’s alleged violations of the July 16,1976 order as more specifically defined and modified by the Commonwealth Court decision and the March 14, 1978 order. After the June 2, 1978 hearing the court below found appellant in contempt of the July 16,1976 order, as modified and fined appellant $1000.00 and sentenced him to ten (10) days in jail. This appeal followed in which appellant argues that he was not in contempt of court because he did not willfully disobey the court order and that the court below abused its discretion in converting a coercive sentence into a penal one without affording appellant the necessary procedural safeguards of the criminal justice system.
It is dear that appellant did erect a fence. However, there is a dispute regarding the erection of the fence as it was erected outside the boundaries of the .454 acre tract. The court below found that the erection of the fence was at least an attempt to obey the order. It is also clear that appellant made an attempt to have the tract surveyed. The fence was placed outside of the surveyed land because it was installed prior to the time of the survey. Appellant argues that strict compliance with the court’s order regarding the placement of the fence would deny appellant ingress and egress to his home and that it is physically impossible to locate the fence on the boundaries of his land. Only when it appears that obedience of the court order is within the power of the party being coerced by said order may that party be held in civil contempt of the order. Commonwealth of Pennsylvania Department of Environmental Resources v. Pennsylvania Power and Light Co., 461 Pa. 675, 337 A.2d 823 (1975). Appellant argues that it is impossible for him to comply with the order and that therefore he should not have been held in contempt for failure to do so.
Appellant was also found in contempt of court because he parked a van and Ms own automobile on the four acre lot from which he is barred from using as a junkyard. He denied parking the van on the said tract and claims that his own automobile had nothing to do with his junkyard business.
A review of the record shows that appellant’s .454 acre tract had a frontage of 103 feet on the roadway in front of Ms home. He erected a redwood fence some thirty to thirty-six feet (80 36') beyond his property lines on each side of the house. The house itself occupied approximately forty feet (40') of the one hundred and three feet (103') frontage. Appellant’s junkyard activities are conducted on the portion of Ms land behind his house. In order to transport vehicles to the area behind his house he uses a dirt access road which
Order of June 2, 1978 holding appellant in contempt is reversed and the record is remanded to the court below for hearing to take evidence on whether compliance with order of June 2, 1978 was possible or not.
Dissenting Opinion
dissenting:
I dissent from the opinion of the majority because I do not believe that this Court has jurisdiction to decide this appeal. I would transfer the case to the Commonwealth Court. See 42 Pa.C.S.A. § 762(a)(4)(i).
Reference
- Full Case Name
- Michael BIGGAN, Appellant, v. FOSTER TOWNSHIP ZONING HEARING BOARD, Appellee, v. Michael KASCHAK, Intervenor
- Cited By
- 4 cases
- Status
- Published