R.B. McNew v. ZHB of East Marlborough Twp.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

R. Bruce McNew, :
Appellant :
: No. 1425 C.D. 2016
v. :
: Argued: May 2, 2017
Zoning Hearing Board of East :
Marlborough Township :
:
Joshua Cauffman and The Singer :
Family Trust and East Marlborough :
Township Board of Supervisors :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: July 20, 2017

R. Bruce McNew (McNew) appeals from the July 14, 2016 order of the
Court of Common Pleas of Chester County (trial court), which, after reviewing the
matter de novo, denied McNew’s land use appeal and upheld the decision of the
Zoning Hearing Board of East Marlborough Township (Board) granting Joshua
Cauffman (Applicant) special exceptions to change a non-conforming use and sign to
another non-conforming use and sign pursuant to the applicable provisions of the
zoning ordinance.
 Background
Applicant is the equitable owner of property located at 1460 Embreeville
Road, Kennett Square, Pennsylvania (Property). The Property is approximately two
acres in size, situated in the Residential District—B portion of East Marlborough
Township (Township), and has several outbuildings. At the time of the hearing, the
legal owner of the Property was the Singer Family Trust, which owned Chester
County Timber (CCT), a lawn and garden equipment repair and sales business. The
Singer Family Trust operated CCT on the Property as a non-conforming use since the
1960s. (Board’s Findings of Fact (F.F.) at 4-5, 9-10.)
Section 1901.A (Change of Non-conforming Use) of the Township’s
zoning ordinance (Ordinance) provides that the Board may grant a special exception
to permit a non-conforming use to be changed to another non-conforming use upon a
determination by the Board that the proposed new use will be less detrimental to its
neighborhood and surrounding area than the use it is to replace. Somewhat similarly,
section 1904.C (Non-conforming Signs) of the Ordinance states that the Board may
permit a non-conforming sign to be changed or replaced upon application for a
special exception. Applicant filed an application with the Board, seeking to change
the current non-conforming use on the Property, i.e., a lawn and equipment repair and
sales business, to another non-conforming use, namely a landscaping design
company. Applicant also sought a special exception to change or replace a non-
conforming sign on the Property to one that will advertise the proposed landscaping
design company. (Board’s F.F. at 7-8.)
The Board convened a hearing on July 28, 2014, at which Applicant
testified and offered the following exhibits into evidence: his application, a written
explanation of the current use and proposed use of the Property, comparisons of the

2
detrimental impacts from the current and proposed use of the Property, and
photographs of the existing sign and diagrams of the proposed sign. At the hearing,
the Board granted McNew, a property owner whose property lies adjacent to the
Property, party status. (Board’s F.F. at 2, 6.)
After receiving the evidence presented by Applicant, the Board made the
following findings of fact:

11. The current use of the Property, as a year-round lawn
mower equipment repair and sales shop serving both
contractors and the general public, garners heavy traffic
including trucks and tractor trailer traffic for parts and new
equipment deliveries as well as general public traffic.

12. Applicant proposes to change the current non-
conforming use to a landscape design company, referred to
as “Green Roots,” which would operate approximately ten
(10) months out of the year and would provide off-site
landscaping services.

13. The proposed landscape design company is seasonal
in nature and thus will employ approximately five (5) full-
time employees and approximately three (3) to five (5) part-
time additional employees during the busier spring and
summer seasons.

14. Due to the seasonal nature of landscaping, the
proposed landscape design company will operate between
the hours of 7:00 a.m. and 6:00 p.m. during the months of
April through December, with fewer hours during the
winter months.

15. The proposed landscape design company will receive
only several deliveries a year, in comparison with the one
(1) to two (2) deliveries a day received by the current non-
conforming use on the Property.

16. The proposed landscape design company will provide
for less traffic than the current non-conforming use as it
would require only employee traffic in the morning to

3
retrieve the equipment, and in the evening to return
equipment, as well as moderate customer traffic for
landscape design meetings.

17. The proposed landscape design company will also
provide for less noise than the current non-conforming use
which requires the constant noise associated with lawn
mower and small engines, power tools and blade
sharpening. In comparison, the only noise attributable to
the proposed design company will be that of trucks leaving
and returning to the Property.

18. The proposed landscape company would require a
small, outdoor landscape yard to store trees and mulch for
upcoming jobs. Applicant proposes that the storage yard
would be located behind a four-car garage currently situated
on the Property.

19. The proposed storage yard would not be visible to
neighboring properties nor would it be visible from the
road.

20. Applicant will store his truck and small hand tools as
well as pallets, mortar, seed, and other equipment and
paraphernalia necessary for the landscaping business inside
the existing buildings and garage on the Property.

21. Applicant does not plan to install any additional
lighting on the Property.

22. The Property provides fifteen (15) to twenty (20)
parking spots, which will sufficiently accommodate for
parking of Applicant’s five (5) work vehicles, as well as for
employee parking.

23. In addition to the change in non-conforming use,
Applicant seeks to change the current sign on the Property
to one reflecting the name of the proposed landscaping
design company.

24. The current sign measures approximately four (4)
feet by six (6) feet. In contrast, the proposed sign will
measure only four (4) feet by four (4) feet.

4
(Board’s F.F. at 11-24.)
Based on these facts, the Board granted Applicant a special exception to
operate his landscaping design company, Green Roots, and also a special exception to
change the business sign presently on the Property. In granting this relief, the Board
opined:

[I]t is determined that Applicant has met the specific and
general requirements of the [Ordinance]. The use sought
will not adversely impact the adjacent properties or be
detrimental to the public health, safety morals, and welfare
of the Township. Applicant has demonstrated that he does
not intend to alter much in regard to the current physical
state of the Property. For example, Applicant does not
intend to install outdoor lighting to the Property that would
be intrusive to adjacent properties. Rather, those physical
changes that Applicant does intend to make to the Property
include the installation of minimum landscaping that will
only act to make the Property more aesthetically pleasing.
Indeed, the proposed use of the Property as a landscape
design company will be less detrimental than its current use
as it will operate fewer months out of the year, will provide
for less customer and delivery traffic and will emit less
noise than the current non-conforming use of the Property
as a lawn and garden equipment repair and sales business.
Applicant has further demonstrated that the Property will
accommodate adequate parking arrangements for
employees and customers.
(Board’s decision at 7.)
Accordingly, the Board concluded that Applicant established his
entitlement to the special exceptions and granted him the special exceptions “subject
to the condition that the proposed use of the subject property shall be in conformance
with the plans, specifications, testimony and evidence presented to the Board.” Id. at
8.

5
 McNew appealed the Board’s decision to the trial court. Following a
stipulation by the parties, the trial court entered an order dated April 1, 2015, wherein
it directed the parties to supplement the record with deposition testimony from
Applicant, the legal owners of the Property and/or their representatives, and, if
necessary, the Township’s Zoning Officer. In this order, the trial court also agreed to
decide the matter de novo, specifically based on “the original hearing transcript and
exhibits, and the additional deposition testimony (and any exhibits thereto) as
submitted[.]” (Reproduced Record (R.R.) at 452a-53a.)
After taking depositions, the parties submitted briefs in support of their
respective positions. Thereafter, by order and opinion dated July 14, 2016, the trial
court denied McNew’s appeal and upheld the Board’s grant of two special exceptions
to Applicant.
In its opinion, the trial court noted that pursuant to section 1005-A of the
Pennsylvania Municipalities Planning Code (MPC), 53 P.S. §11005-A,1 it was
obligated to make its own findings of fact based on the record below as supplemented
by the additional evidence. In issuing its findings of fact, the trial court adopted and
incorporated the Board’s twenty-four findings and also rendered the following
findings based upon the additional evidence presented via depositions:

25. Starting in the 1960s, the Property was used by John
W. “Jack” Singer to operate a lawnmower and landscape
equipment sales and repair shop known as [CCT], until Mr.
Singer’s death in February 2013.

26. CCT’s daily business hours were 8:00 a.m. to 6:00
p.m. However, Mr. Singer regularly extended the hours to
accommodate customers.
1
Act of July 31, 1968, P.L. 805, added by the Act of December 21, 1988, P.L. 1329, 53 P.S.
§11005-A.

6
27. When in full operation, CCT had an indoor
showroom for the sale of various gardening equipment, and
that equipment was also moved outside for display if
weather permitted.

28. CCT owned and stored on the Property at least two
tractors with front-end loaders, one with a seventeen (17)
horsepower engine, another with a thirty-seven (37)
horsepower engine and rear wheels four feet in height.
CCT also owned a tractor with a 48-inch lawn mower, and
trailers for transporting that equipment.

29. Woodpiles, various equipment, gardening and
construction supplies, and other materials were stored
around the property of CCT.

30. On any given day, CCT would see at least (30)
customers, and the number of customers could hit one
hundred (100) on a Saturday.

31. CCT had approximately five (5) full-time employees
at its height. However, the economic recession and his own
declining health forced Mr. Singer to lay off all employees
except his daughter, Diane Thierry, in 2008.

32. At the time of the downsizing, CCT stopped
servicing full-scale landscaping equipment and began
repairing solely small and handheld devices.

33. Despite the downsizing, CCT stayed in continuous
operation until Mr. Singer’s death in 2013, and has
continued limited operations up to the present.

34. As part of [Applicant’s] proposed use, also known as
“Green Roots,” the following vehicles will be stored on the
Property: two dump trucks, a “utility body” truck,
[Applicant’s] personal truck, a skid loader with a capacity
of approximately one ton, and a trailer to transport the
loader.

35. The trucks owned by [Applicant’s] proposed business
will often not be present at the Property at all, due to the

7
 fact that the employees will drive the company vehicles
home themselves and carpool directly to job sites.

36. At the deposition[s], both John Singer (son of Jack)
and [Applicant] indicated on a map of the Property what
portions thereof their respective businesses used or would
use. CCT utilized far more of the Property than Green
Roots intends to use.
(Trial court’s F.F. at 25-36.)
The trial court also addressed in its opinion four general arguments, and
their numerous subsidiaries, that McNew raised in his brief contending that Applicant
was not entitled to the special exceptions. As an initial matter, the trial court
correctly observed that, under the Ordinance, a special exception may be granted to
change a non-conforming use that has not been abandoned to another non-
conforming use when the new, proposed use – after considering a non-exhaustive list
of factors such as traffic generated, nuisance characteristics (e.g., emission of noise,
dust, and smoke), and the hours and manner of operation – will be less detrimental to
its neighborhood and surrounding than the preexisting use. In virtually every
conceivable aspect, McNew argued that Applicant failed to satisfy these criteria.
First, McNew asserted that a portion of the existing non-conforming use
of the Property was abandoned, per section 1901.E of the Ordinance,2 because CCT

2
This section provides:

Whenever a Non-Conforming Use of land, premises, building or
Structure, or any part or portion thereof, has been discontinued for a
period of one year, such discontinuance shall be presumed to
constitute an intention to abandon such use and any subsequent use of
the property shall be in conformity with the provisions of this
Ordinance.

Ordinance, §1901.E.

8
“downsized” its operations in 2008. The trial court disagreed. Citing case law for the
proposition that mere reduction in activity does not constitute abandonment of a non-
conforming use, the trial court determined that although CCT’s operations were
decreased in scope, no portion of the non-conforming use was abandoned. More
particularly, the trial court concluded that “despite [the] lessened intensity, CCT
remained in continuous operation, and the essential nature of the business did not
change.” (Trial court op. at 7.)
Next, McNew alleged that Applicant’s proposed use of Green Roots will
be more detrimental to the community than CCT’s operations and therefore fails to
satisfy the standard set forth in 1901.A of the Ordinance.3 In this regard, McNew
contended that Green Roots will have more employees, store more heavy equipment,
enlarge the commercial display area, increase outdoor storage for supplies, operate

3
This provision states:

The regulations of this Article shall apply to existing lawful uses,
Structures, Lots, and Signs which do not conform to the provisions of
this Ordinance nor to the provisions of any subsequent amendment
hereto . . . .

A. Change of Use

A Non-Conforming Use may be changed to another Non-Conforming
Use by grant of Special Exception only upon determination by the
Zoning Hearing Board, after Public Hearing, that the proposed new
use will be less detrimental to its neighborhood and surrounding than
is the use it is to replace. In determining relative detriment, the
Zoning Hearing Board shall take into consideration, among other
things; traffic generated; nuisance characteristics (such as emission of
noise, dust and smoke); fire hazards; and hours and manner of
operation.

Ordinance, §1901.A.

9
for longer hours, and result in additional outdoor lighting. McNew further contended
that, in comparison to CCT’s operations, Applicant’s proposed use will garner more
business, occupy a greater portion of the Property’s area, and generate more noise,
dust, and emissions. Relatedly, McNew argued that the proposed use is inconsistent
with the Township’s comprehensive zoning plan and alters the character and type of
the surrounding community.
In rejecting these arguments, the trial court determined that Applicant’s
proposed use “will be less detrimental to its neighborhood and surrounding than is the
use it is to replace.” Ordinance, §1901.A. With respect to number of employees, the
trial court found:

[T]he court must consider the cumulative history of the
current use, and CCT, when it was in full operation, had
five employees performing their equipment repair services
entirely upon the premises. While the proposed use does
seek to bring more employees to the Property, the
circumstances of those employees’ activity on the Property
would be fundamentally different. CCT’s full-time
employees spent the entire work day at the Property, while
the employees of Green Roots will spend most of their
working hours off site at various landscaping job locations,
and only spending time on the Property itself to retrieve
equipment, and prepare for the off-site projects.
(Trial court op. at 8.)
Regarding the issues that McNew had with the storage of equipment and
the hours of operation of Applicant’s proposed use, the trial court explained that these
concerns were unfounded:

The existing use stores a variety of smaller equipment on
the Property, while the proposed use would store several
pieces of larger equipment . . . . However, due to the nature
of [Applicant’s] business, the equipment stored at the
Property would not actually be on the Property most of the

10
 time, since it would be used at various landscaping job sites.
This is in contrast to the current use, which, based upon the
nature of [CCT’s] business as a repair company, keeps
most, if not all, of the equipment on the Property
permanently . . . .

Both the current and proposed uses utilize the grounds of
the Property to store supplies for their businesses.
However, the proposed use would only use areas of the
Property that are screened from public view by trees or the
garage on the Property for outdoor storage. Moreover, the
supplies that would be stored outside, namely mulch and
trees to be planted at job sites, would be delivered to the
Property only a few times per year. The current use, when it
was operating at full capacity, required deliveries to the
Property on a daily basis . . . .

The proposed use will open one hour before the current use;
however, that does not mean that activity will commence at
the Property at 7:00 a.m. The actual business operations of
the proposed use take place off-site, at various landscaping
jobs, and the employees participating in those jobs will take
the company vehicles home for the evening and drive
directly to a job site to commence work at the site at 7:00
a.m. The current use permits customers to come and go at
any hour of daylight, and often requires that work continue
at the Property until late at night.
(Trial court op. at 8-10.)
In terms of McNew’s contentions related to the proposed use’s
appearance to the public, the trial court determined that Applicant’s proposed use will
have an “outdoor display of sample landscaping designs [that are] more aesthetically
pleasing than CCT’s indoor and outdoor exhibition of gardening equipment” and that
“Green Roots will not have any dedicated retail space on the Property.” Id. at 9. The
trial court reiterated Finding of Fact No. 21, which states that Applicant “does not
plan to install any additional lighting on the Property,” and noted that any prospect of

11
Applicant adding a low-voltage LED business sign was speculative and subject to
other regulations imposed by the Ordinance. Id. at 10-11.
In addition, the trial court addressed McNew’s assertions pertaining to
traffic, total surface area of the proposed use, and noise, dust, and emissions as
follows:

When it was in full operation, CCT was frequented by
customers who came to the Property to have their lawn
equipment fixed. Thirty or more customers would come to
the Property every day during the warmer months, with up
to a hundred customers on the weekends. These
commercial customers generated a great deal of traffic on
the roads surrounding the Property and on the Property
itself. Moreover, to sustain this high influx of business,
deliveries to the Property by both large and small vehicles
were required almost daily during the summer months.
However, the proposed use, the Green Roots landscaping
company, is not a commercial establishment open to the
public, but rather a hub for various landscaping contracts to
be completed offsite. In and of itself, this difference in
business purpose will reduce the Property’s impact upon the
surrounding neighborhood . . . .

CCT used almost the entirety of the Property for its
business. Significant portions of the Property were devoted
to woodpiles and equipment storage. However, [Applicant]
indicated that Green Roots would only use several, much
smaller, areas of the Property for storage of mulch and other
landscaping supplies. The proposed use will be less
detrimental to the surrounding properties considering that a
smaller footprint of the Property would actually be utilized
on a regular basis . . . .

CCT, as a landscape equipment repair company, would
often test-run the various lawn equipment under repair at
the Property. Such repairs would also sometimes require
the use of power tools. This activity resulted in fairly
frequent mechanical noise emanating from the Property.
The frequent deliveries to the Property also resulted in

12
 significant emissions. Green Roots would not be testing or
repairing equipment on the Property, and would receive far
fewer truck deliveries. The only noise from the Property
under the proposed use would be caused by the various
landscaping trucks departing and arriving for offsite jobs,
which would only occur at certain points and not
throughout the day.
Id. at 11-12.
Further, the trial court determined that granting Applicant special
exceptions in this case was consistent with the Township’s comprehensive zoning
plan, will not substantially impair, alter, or detract from the neighborhood, and is
suitable with respect to the traffic and highways in the area. Id. at 13-14.
Taking into consideration all these factors and considerations, and for all
these reasons, the trial court concluded that the proposed nonconforming use will be
less detrimental to its neighborhood and surrounding area than the preexisting use.
Finally, McNew argued in the alternative that if special exceptions were
to be granted, conditions should be imposed pursuant to section 2109(7) of the
Ordinance.4 The trial court dismissed this contention as follows:

4
This part of the Ordinance provides:

In any instance where the Zoning Hearing Board is required to
consider a request for Variance or Special Exception, the Zoning
Hearing Board must determine that the following standards and
criteria are met before granting the request:

* * *

7. Conditions are being imposed on the grant of the request necessary
to insure that the general purpose and intent of this Zoning Ordinance
is complied with and that the use of the property adjacent to the area
included in the proposed change or modification is adequately
safeguarded with respect to harmonious design in buildings,
aesthetics, planting, and its maintenance as a sight or sound screen,
(Footnote continued on next page…)

13
 The conditions proposed by [McNew] do not find support
in the record. Most of the requirements imposed by the
conditions serve to unduly restrict the proposed use, such as
limiting the number of vehicles and employees that may be
present on the property. The outright prohibition of outdoor
storage and loading is far more restrictive than necessary,
especially since the current use of the Property, alleged by
[McNew] to be less detrimental to the community than the
proposed use, utilizes most of the Property for outdoor
storage. Other conditions, such as restrictions on lighting
and the business sign, are merely restatements of what
[Applicant] has already agreed to restrict. For those
reasons, the court will not impose any of the conditions
requested by [McNew].

(Trial court op. at 15-16.)
Based upon the above findings and legal reasoning, the trial court
concluded, as a matter of law, that Applicant was entitled to the special exceptions.
The trial court further concluded that the existing non-confirming use of the Property
was not abandoned and the proposed non-conforming use is less detrimental to its
neighborhood and surrounding than the existing non-conforming use. Id. at 16. In
determining that no conditions are required to be imposed on the proposed non-
conforming use, the trial court upheld the Board’s decision with the understanding
that Applicant is bound by all the representations he made to the Board with respect
to the plans and specifications he submitted to the Board. Accordingly, the trial court
denied McNew’s land use appeal.

(continued…)

landscaping, hours of operation, lighting, numbers of persons
involved, allied activities, ventilation, noise, sanitation, safety, smoke
and fume control, and the minimizing of noxious, offensive, or
hazardous elements.

Ordinance, §2109(7).

14
 McNew filed a timely notice of appeal to this Court. The trial court then
ordered McNew to file a Pa.R.A.P. 1925(b) statement, which he did. Instead of filing
a Pa.R.A.P. 1925(a) opinion, the trial court referred to its July 14, 2016 order and
opinion as disposing of all of McNew’s assertions of error.

Discussion
According to his appellate brief, McNew raises five issues for our
review.5
In his first issue, McNew argues that the trial court committed an error
of law in failing to find that the existing use was not partially abandoned because
CCT discontinued a specific “portion” of its business, namely large equipment repair,
and terminated five employees. For support, McNew highlights the phrase in the
Ordinance, “or any part or portion thereof,” and states that it expresses the
Township’s policy against eliminating or reducing non-conforming uses over time.
Along these lines, McNew ultimately asserts that “the 2008 discontinuance of the
large equipment repair business was an intentional abandonment of it, and the
comparison of Applicant’s new proposed use must be to [CCT’s] most recent one-
man (and his daughter) lawnmower and small equipment repair shop.” (McNew’s
brief at 18.)
One way in which a lawful nonconforming can be abrogated or
destroyed is if the property owner abandons the use. Keystone Outdoor Advertising
v. Department of Transportation, 687 A.2d 47, 51 (Pa. Cmwlth. 1996). Here, as the

5
Where, as here, the trial court takes additional evidence on the merits, it reviews the case
de novo; this Court then reviews the trial court’s findings of fact and legal conclusions for an error
of law or abuse of discretion. LHT Associates, LLC v. Township of Hampton, 809 A.2d 1072, 1075
n.1 (Pa. Cmwlth. 2002).

15
party claiming the abandonment, McNew had the burden of proving abandonment.
Latrobe Speedway, Inc. v. Zoning Hearing Board of Unity Township, 720 A.2d 127,
132 (Pa. 1998). To sustain this burden, McNew was required to show that: (1) CCT
intended to abandon the non-conforming use of a lawn and garden business, (2) CCT
actually abandoned the use. Id. As a general rule, the mere reduction in activity or
use of the property does not constitute abandonment of a non-conforming use. See
Simonitis v. Zoning Hearing Board of Swoyersville Borough, 865 A.2d 284, 289 (Pa.
Cmwlth. 2005) (“The evidence relied upon by the trial court showed only a reduced
use of the Property as a garage, but not an abandonment.”); Heichel v. Springfield
Township Zoning Hearing Board, 830 A.2d 1081, 1087 (Pa. Cmwlth. 2003)
(concluding that no abandoned had occurred where “[n]o attempt was made by the
Landowner to convert the property to some other use; no structures were demolished;
no roads were removed; and no equipment was sold. The only change was in the
volume of the inventory of abandoned cars, which is to be expected in a business of
this type.”).
Section 1901.E of the Ordinance reads:

Whenever a Non-Conforming Use of land, premises,
building or Structure, or any part or portion thereof, has
been discontinued for a period of one year, such
discontinuance shall be presumed to constitute an intention
to abandon such use and any subsequent use of the property
shall be in conformity with the provisions of this Ordinance.
Ordinance, §1901.E (emphasis added).
In construing the language of a zoning ordinance, this Court has said:

The rules of statutory construction apply to ordinances as
well as statutes. The interpretation of a statute or ordinance
presents this Court with a pure question of law, which is
generally subject to plenary review.

16
 The primary objective of statutory interpretation is to
determine the intent of the enacting legislation. In pursuing
that end, we are mindful that a statute's plain language
generally provides the best indication of legislative intent
and, thus, statutory construction begins with examination of
the text itself. In reading the plain language of a statute,
words and phrases shall be construed according to rules of
grammar and according to their common and approved
usage. With respect to zoning matters, undefined terms are
given their plain meaning, and any doubt is resolved in
favor of the landowner and the least restrictive use of the
land.
Kohl v. New Sewickley Township Zoning Hearing Board, 108 A.3d 961, 968 (Pa.
Cmwlth. 2015) (internal citations and quotation marks omitted).
Upon examination, we agree with trial court that the general rule, i.e.,
that a reduced use of the property does not constitute abandonment of a non-
conforming use, applies here. The trial court’s finding of fact No. 32, which is
supported by substantial evidence, states: “[a]t the time of the downsizing, CCT
stopped servicing full-scale landscaping equipment and began repairing solely small
and handheld devices.” (F.F. at No. 32.) Obviously, CCT’s transition from repairing
heavy equipment to smaller equipment is a reduction in the intensity of the use, but
the primary characteristic of the use – repairing equipment – has remained the same.
We therefore conclude that, under prevailing case law, CCT did not abandon its use.
We also reject McNew’s attempt to escape this conclusion by
contending that the particular language of the Ordinance prohibits a reduction in a
non-conforming use. In our view, McNew misinterprets the phrase, “or any part or
portion thereof,” and erroneously believes that it is conjoined grammatically with the
scope of the actual non-conforming use. To the contrary, this phrase modifies the
phrase immediately preceding it, “land, premises, building or Structure,” and is
clearly used to denote the situation where a non-conforming use is granted to a “part

17
or portion” of the land, premises, or structure; e.g., a swing-set in the lower-left
corner of a backyard, a taxidermy shop in the cellar of a house, or a sign placed atop
an unattached garage.
Indeed, this is the only logical interpretation of the Ordinance. If a non-
conforming use could be subdivided or pared down, based upon inconsequential
changes to the nature of the business, then an absurd result would occur and the use
would, as a practical matter, be an ever-changing construct depending upon routine
and ministerial business decisions. We think that common sense dictates that a use,
in its general sense, is the only thing under the Ordinance that can be abandoned. So
long as the use maintains its basic character, a specific part or portion of the use
cannot be abandoned based upon minute changes or alterations in the way in which
the use is effectuated, or, in other words, when there results a mere reduction in
activity. There is a dramatic difference between a reduction in the scope of the use
itself and the conversion of a use to an entirely new and distinct use. This case
clearly evidences the former situation. Therefore, this Court concludes that McNew’s
first issue does not entitle him to relief.
In his second issue, McNew asserts that the trial court abused its
discretion in determining that Applicant’s proposed use will be less detrimental to its
neighborhood and surrounding than the preexisting use. McNew merely restates the
contentions he advanced to the trial court, specifically those related to the proposed
use’s number of employees, storage of heavy equipment, commercial display area,
outdoor storage, hours of operation, outdoor lighting, and business sign.
Importantly, the trial court, proceeding in a de novo capacity, was the
fact-finder, and, as such, the sole judge of the credibility of witnesses and the weight
afforded their testimony. See LHT Associates, LLC v. Township of Hampton, 809

18
A.2d 1072, 1075 n.1 (Pa. Cmwlth. 2002); DeCray v. Zoning Hearing Board of Upper
Saucon Township, 599 A.2d 286, 288 (Pa. Cmwlth. 1991). In the relevant parts of its
opinion, reproduced above, the trial court ably and soundly rejected McNew’s
contentions, which, in overwhelming measure, attack the trial court’s interpretation
and assessment of the weight and credibility of the evidence.
For instance, despite the trial court’s findings of fact, McNew calculates
that “there would be as many as nine additional workers’ vehicles, plus ‘a few’
vehicles of the office staff, for a total of twelve or more,” (McNew’s brief at 27);
contends that “[o]utdoor storage of dump trucks and a heavy trailer are inconsistent
with” the preexisting use, id. at 29;6 asserts that “Applicant . . . plans to have a
display area for plants on the Property [and] [t]here is no outdoor retail display area
in [CCT’s] business,” id. at 30; maintains that Applicant’s “outdoor storage
represents a clear increase, not a reduction, of the very minimal outdoor storage that
[CCT] had,” id. at 32;7 alleges that “[CCT’s] hours of operation were from 8:00 a.m.

6
Cf. Trial court op. at 8-9; cf. also F.F. at Nos. 11 (“The current use of the Property, as a
year-round lawn mower equipment repair and sales shop serving both contractors and the general
public, garners heavy traffic including trucks and tractor trailer traffic for parts and new equipment
deliveries as well as general public traffic.”); 28 (“CCT owned and stored on the Property at least
two tractors with front-end loaders, one with a seventeen (17) horsepower engine, another with a
thirty-seven (37) horsepower engine and rear wheels four feet in height. CCT also owned a tractor
with a 48-inch lawn mower, and trailers for transporting that equipment.”), with F.F at Nos. 12, 13,
22 (“The Property provides fifteen (15) to twenty (20) parking spots, which will sufficiently
accommodate for parking of Applicant’s five (5) work vehicles, as well as for employee parking.”);
34 (“[T]he following vehicles will be stored on the Property: two dump trucks, a “utility body”
truck, [Applicant’s] personal truck, a skid loader with a capacity of approximately one ton, and a
trailer to transport the loader.”); 35 (“[Unlike CCT,] [t]he trucks owned by [Applicant’s] proposed
business will often not be present at the Property at all, due to the fact that the employees will drive
the company vehicles home themselves and carpool directly to job sites.”).

7
Cf. F.F. at Nos. 18 (“The proposed landscape company would require a small, outdoor
landscape yard to store trees and mulch for upcoming jobs. Applicant proposes that the storage
(Footnote continued on next page…)

19
until 6:00 p.m. [while] Applicant proposes to start an hour earlier, at 7:00 a.m.,” id. at
33-34;8 and claims that Applicant’s plans for “additional lighting is an increase, not a
decrease, in the detriment to the residential neighborhood,” id. at 35.9
In essence, McNew’s arguments contradict – or at the very least, assume
away – the trial court’s factual findings and do nothing more than urge this Court to
adopt his position, see infra nn. 6-9, which is something that our scope of review
precludes us from doing. See Polinsky v. Department of Transportation, 569 A.2d
425, 428 (Pa. Cmwlth. 1990). Critically, McNew does not challenge any of the trial

(continued…)

yard would be located behind a four-car garage currently situated on the Property.”); 19 (“The
proposed storage yard would not be visible to neighboring properties nor would it be visible from
the road.”); 20 (“Applicant will store his truck and small hand tools as well as pallets, mortar, seed,
and other equipment and paraphernalia necessary for the landscaping business inside the existing
buildings and garage on the Property.”); 27 (“When in full operation, CCT had an indoor showroom
for the sale of various gardening equipment, and that equipment was also moved outside for display
if weather permitted.”); 29 (“Woodpiles, various equipment, gardening and construction supplies,
and other materials were stored around the property of CCT.”).

8
Cf. F.F. at Nos. 26 (“CCT’s daily business hours were 8:00 a.m. to 6:00 p.m. However,
Mr. Singer regularly extended the hours to accommodate customers.”); 30 (“On any given day,
CCT would see at least (30) customers, and the number of customers could hit one hundred (100)
on a Saturday.”); Trial court op. at 10 (“The proposed use will open one hour before the current use;
however, that does not mean that activity will commence at the Property at 7:00 a.m. The actual
business operations of the proposed use take place off-site, at various landscaping jobs, and the
employees participating in those jobs will take the company vehicles home for the evening and
drive directly to a job site to commence work at the site at 7:00 a.m. The current use permits
customers to come and go at any hour of daylight, and often requires that work continue at the
Property until late at night.”).

9
Cf. F.F. at 21 (“Applicant does not plan to install any additional lighting on the Property.”).

McNew also contends or, rather, presupposes, that Applicant will convert the sign into an
illuminated one. However, Applicant did not obtain the necessary special exception to make this
change.

20
court’s findings that differ from or refute his own recitation of the facts on legal
sufficiency grounds, and, as a result, the trial court’s findings are “conclusive and
may not be disregarded.” Id. at n.2. Because McNew’s brief narrates facts which are
contrary to those found by the trial court, and he does not contest the factual findings
that the trial court actually made, McNew has not proven that the trial court abused its
discretion or committed legal error. See Ductmate Industries, Inc. v. Unemployment
Compensation Board of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008).
Further, based on our review, we conclude that the trial court’s following
legal conclusion is supported by the pertinent, unchallenged findings:

[T]he proposed use . . . will be less detrimental than its
current use as it will operate fewer months and hours out of
the year, will provide for less customer and delivery traffic
and will emit less noise than the current non-conforming
use of the Property as a lawn and garden equipment repair
and sales business.
(Trial court op. at 7.) Therefore, affording the trial court the appropriate deference it
is entitled to as the fact-finder, and discerning no error of law flowing from the
factual findings, we conclude that McNew’s second issue fails.
In his third, fourth, and fifth issues, which we address conjunctively due
to their overlapping nature, McNew posits that the trial court abused its discretion in
failing to impose conditions when granting the special exceptions. More specifically,
McNew contends that the trial court should have imposed conditions to guarantee that
Applicant would conduct Green Roots in the manner that he testified to and in
accordance with the findings of fact.
In addition, McNew asserts, cursorily and without any further
elaboration, that it was necessary for the trial court to impose conditions related to
planting, landscaping, hours of operation, manners of operation, lighting, number of

21
persons involved, traffic generated, and noise, dust, and other noxious or offensive
elements. McNew further contends that the trial court should have attached a
condition requiring Applicant to install screening to safeguard his property against
unruly sights. Finally, McNew argues that the trial court should have imposed a
condition prohibiting Applicant from installing additional lighting on the Property.
We disagree. “A [special] exception has its origin in the ordinance
itself; it relates only to such situations as are expressly provided for and enunciated
by the terms of the ordinance.” Timber Place Associates v. Plymouth Township
Zoning Hearing Board, 430 A.2d 403, 405 (Pa. Cmwlth. 1981). Contrary to
McNew’s overriding contention, when the Board granted Applicant the special
exceptions, it did so “subject to the conditions contained in [its] Order,” specifically
“subject to the condition that the proposed use of the subject property shall be in
conformance with the plans, specifications, testimony and evidence presented to the
Board.” (Board’s decision at 8). The Board expressly found that “Applicant does not
plan to install any additional lighting on the Property.” (Board’s F.F. at 21.)
As a practical matter, the Board imposed conditions upon Applicant and
limited the scope of the proposed use consistent with the terms and sections of the
Ordinance governing special exceptions and conditions. On appeal, the trial court
upheld the Board’s decision based on the understanding that Applicant is bound by
the Board’s conditions. (Trial court op. at 2, 10, 16.) Consequently, if Applicant
conducts Green Roots in a manner that transcends his testimony or the parameters of
the special exceptions, the Township may institute proceedings to revoke the special
exceptions. See Kulak v. Zoning Hearing Board, 563 A.2d 978, 981-82 (Pa. Cmwlth.
1989) (stating that when a municipality imposes a condition, the municipality may
“revoke the special exception, when compliance is not forthcoming or is

22
impossible.”). On this note, the trial court did not err in failing to attach conditions to
which Applicant has already agreed to follow and to which the Board has ordered
Applicant to follow as a condition to the special exceptions.
Moreover, “although a municipal body may attach reasonable conditions
in approving a special exception, the conditions must not be so onerous as to bar the
use, and broad policy statements may not form the basis for such conditions.” Ethan-
Michael, Inc. v. Board of Supervisors of Union Township, 918 A.2d 203, 209 (Pa.
Cmwlth. 2007). “Conditions must be reasonable and must find support in the record
warranting the imposition of such conditions; otherwise, the imposition of conditions
constitutes an abuse of discretion.” Coal Gas Recovery, LP v. Franklin Township
Zoning Hearing Board, Greene County, 944 A.2d 832, 839 (Pa. Cmwlth. 2008).
Here, the trial court declined to impose any of the conditions that McNew requested
above and beyond that which the Board ordered and Applicant agreed to follow.
(Trial court op. at 16.)
To the extent, if any, that the above analysis does not dispose of
McNew’s contentions, we agree with the trial court’s astute analysis and conclusion
that the conditions proposed by McNew do not find support in the record and/or serve
to unduly restrict Applicant’s proposed use. Id. at 15-16. We further agree with the
trial court and its uncontested findings that the proposed layout of Green Roots is
more aesthetically pleasing than the existing use and, therefore, there is no need to
impose a condition requiring that fencing be placed around the business. (Trial court
op. at 9; see Board’s decision at 5.) The attachment of conditions lies within the trial
court’s discretionary power, see Coal Gas Recovery, 944 A.2d at 839, and there is no
credible evidence of record that would compel the trial court to impose the requested

23
conditions. Consequently, we conclude that McNew’s remaining arguments lack
merit.

Conclusion
Upon our consideration of McNew’s assertions of error, we cannot
conclude that the trial court abused its discretion or committed an error of law when
resolving the matter in a de novo capacity. As explained above, we conclude the trial
court correctly determined that Applicant proved that he was entitled to the special
exceptions; the existing non-conforming use of the Property was not abandoned; the
proposed non-conforming use is less detrimental to its neighborhood and surrounding
than the existing non-conforming use; and that no further conditions are required to
be imposed on the special exceptions. Having made this conclusion, and unable to
find any error on the part of the trial court, we decline McNew’s request to upset the
trial court’s decision and we will instead affirm the trial court’s July 14, 2016 order.

________________________________
PATRICIA A. McCULLOUGH, Judge

24
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

R. Bruce McNew, :
Appellant :
: No. 1425 C.D. 2016
v. :
:
Zoning Hearing Board of East :
Marlborough Township :
:
Joshua Cauffman and The Singer :
Family Trust and East Marlborough :
Township Board of Supervisors :

ORDER

AND NOW, this 20th day of July, 2017, the July 14, 2016 order of the
Court of Common Pleas of Chester County is hereby affirmed.

________________________________
PATRICIA A. McCULLOUGH, Judge