HomeMy WebLinkAbout2019-11723
BARBARA MYERS,
Appellant
v.
HOPEWELL TOWNSHIP ZONING
HEARING BOARD,
Appellee
IN THE COURT OF COMMON PLEAS
v.
OF THE NINTH JUDICIAL DISTRICT
BOARD OF SUPERVISORS OF
HOPEWELL TOWNSHIP,
Intervenors
2019-11723 CIVIL TERM
IN RE: APPEAL FROM ZONING HEARING BOARD DECISION
BEFORE PLACEY, J.
OPINION AND ORDER OF COURT
PLACEY, C.P.J. 10 AUGUST 2020
In this land use case, a property owner has appealed from a decision of a
1
township’s zoning hearing board supporting an enforcement notice issued by the
2
township’s zoning officer. The appeal requests relief in the form of a reversal of the
3
decision or a remand to the board. The township’s board of supervisors has
45
intervened in support of the board’s decision.
1
Decision of Zoning Hearing Board, dated October 15, 2019 (hereinafter Decision of Zoning Hearing
Board).
2
Appellant’s Notice of Appeal, filed November 14, 2019 (hereinafter Appellant’s Notice of Appeal to
Court of Common Pleas). The matter was before the Zoning Hearing Board on Appellant’s Notice of
Appeal from the enforcement notice, dated May 10, 2019 (hereinafter Appellant’s Notice of Appeal to
Zoning Hearing Board).
3
Appellant’s Notice of Appeal to Court of Common Pleas, prayer for relief.
4
Notice of Intervention, filed November 26, 2019.
5
See Brief of Board of Supervisors of Hopewell Township, filed February 26, 2020.
2019-11723 CIVIL TERM
6
This matter was scheduled for the May 22, 2020, argument court, and has been
submitted on briefs. For the reasons stated in this opinion, the decision of the zoning
hearing board will be affirmed.
STATEMENT OF FACTS
Appellant Barbara Myers has been the owner of a 10.75-acre tract of land in
Hopewell Township, Cumberland County, Pennsylvania, known as 415 Newville Road,
7
Newburg, Pennsylvania, since October 21, 1999 (hereinafter the property). By way of
an enforcement notice dated April 11, 2019, Appellant was advised by the township’s
zoning officer that the accumulation of refuse and “inoperable/remnants of junk
8
vehicles” on the property constituted a violation of the township’s zoning ordinance.
The notice particularized the violation as follows:
\[T\]he Hopewell Township Zoning Ordinance does not permit
unlicensed vehicles, inoperable, or junked motor vehicles to be
parked, stored, or placed upon any property in Hopewell Township.
This regulation is set forth in Article 11, Section 11.04C of the 2010
Hopewell Township Zoning Ordinance. Also, be advised that the
Hopewell Township Ordinance prohibits dumps, landfill or disposal
site upon any property in Hopewell Township except a landfill or
disposal site properly licensed through Pennsylvania Department of
Environmental Protection. This regulation is set forth in Article 11,
9
Section 11.04B of the 2010 Hopewell Township Zoning Ordinance.
The referenced sections of the Hopewell Township Zoning Ordinance provide as
follows:
Section 11.04. Prohibited Uses in All Districts.
B. Dump, landfill or disposal site, except a refuse disposal site
established as an official township refuse disposal site or a
6
See Order of Court, dated March 20, 2020.
7
N.T. 7-8, Zoning Hearing Board Hearing, September 4, 2019; Appellant’s Notice of Appeal to Zoning
Hearing Board, Exhibit A (deed).
8
Appellant’s Notice of Appeal to Zoning Hearing Board, Exhibit C (Enforcement Notice).
9
Id.
2
2019-11723 CIVIL TERM
refuse site duly licenses as a refuse site by the Pennsylvania
Department of Environmental Protection.
C. No unlicensed, inoperable or junked motor vehicle or substantial
remnants there of shall be parked, stored, placed or allowed to
remain on any lot within any zoning district for a period in
excess of thirty (30) days, except that nothing shall be deemed
to prohibit the parking, storage or placement of such vehicle
within a completely enclosed building or structure, or within a
junk yard with a valid license and permit therefore.
Hopewell Township Zoning Ordinance, Section 11.04B, C.
Under the ordinance, “junk” is defined as “\[a\]ny scrap, waste, reclaimable
material, or debris, whether or not stored, for sale or in the process of being dismantled,
10
destroyed, processed, salvaged, stored, baled, disposed, or other use of disposition.”
And a “junkyard and recycling center” is defined as “”\[a\]ny area and/or structure used
primarily for the collecting of scrap metal or discarded material, or for the dismantling,
storage and salvaging or the machinery or vehicles primarily not in running condition
11
and for the sale of parts thereof.”
From this enforcement notice Appellant filed an appeal to the Hopewell Township
12
Zoning Hearing Board, Appellee herein, by a notice of appeal dated May 10, 2019. As
expressed in Appellant’s narrative accompanying the notice of appeal, the basis for the
appeal was that the “Township is estopped from enforcing Sections 11.04.B and
11.04.C of the Zoning Ordinance against the current use of the Property under the
13
doctrine of Pre-Existing Nonconforming Use.”
10
Hopewell Township Zoning Ordinance, §2.02, retrieved June 11, 2020, at
https://www.ccpa.net/DocumentCenter/View/7037/Hopewell_Zoning_Revised-7-14-10_Supervisors-
Comme?bidId=
11
Id.
12
Appellant’s Notice of Appeal to Zoning Hearing Board.
13
Appellant’s Notice of Appeal to Zoning Hearing Board, Narrative in Support of Zoning Hearing Board
Appeal, at 2.
3
2019-11723 CIVIL TERM
The narrative averred that prior to Appellant’s ownership of the property her
mother had been the owner, that the property is improved with a gravel parking area
and several garage buildings, and that Appellant’s husband uses the property “for
14
automotive and mechanical repair as well as an ongoing scrapping business,”
15
including the storage of “junk vehicles.” It averred further that this operation had
existed on the property since 1987, predating the township’s first zoning ordinance in
16
1991. Inasmuch as “\[t\]he Current Use has been in place since prior to the adoption of
the Zoning Ordinance, or any zoning ordinance in the Township,” Appellant “has a
vested property right in the Current Use, which cannot be prohibited by the
17
subsequently enacted Zoning Ordinance,” according to the narrative.
Appellant’s notice of appeal to the zoning hearing board concluded with a
request “that the Board grant her appeal and reverse the determination of the Zoning
Officer that the Current Use is prohibited by Sections 11.04.B and 11.04.C of the Zoning
18
Ordinance.” A letter from Appellant’s counsel accompanying the notice of appeal
stated that “\[a\]t the hearing Appellant will present testimony and evidence to provide
19
justification for the requested relief.”
A hearing on the appeal from the enforcement notice was held by the zoning
hearing board on June 19, 2019, and September 4, 2019. Prior to the presentation of
evidence, the parties initially disagreed on the order of proof, with the township’s
14
Id., at 1.
15
Id., at 2.
16
Id., at 1-2.
17
Id., at 3.
18
Appellant’s Notice of Appeal to Zoning Hearing Board, prayer for relief.
19
Letter dated March 10, 2019, to zoning hearing board from James P. Welch, Esq., at 1.
4
2019-11723 CIVIL TERM
solicitor noting that the proponent of a pre-existing nonconforming use bore the burden
20
of proving it, and Appellant’s attorney arguing that “\[i\]t is the township’s burden to
21
prove that a violation occurred.”
Appellant’s counsel did, however, concede part of the township’s case in this
regard:
I think we would stipulate that there are inoperable vehicles on the
side which goes to one of the provisions that we cited in the
enforcement notice, 11.04.C; however, 11.04.B, which was also
referenced as a violation, we would not stipulate that there is
anything on the site that violates that provision of the
22
ordinance … .
Ultimately, Appellant’s attorney agreed that “\[w\]e can proceed in whatever order
23
the Board prefers.” The board’s solicitor suggested that Appellant could “put whatever
limited information you want on the record and then \[the township\] can proceed with
anything—evidence they want to provide saying that there’s a violation of the
24
ordinance,” and Appellant’s counsel responded, “Like I said, we’re happy to proceed
25
that way … .”
At the hearing, Appellant presented one witness, in the person of Appellant’s
26
spouse. The township presented five exhibits and three witnesses: an expert in the
area of land use who had testified before zoning hearing boards and courts in the
20
N.T. 4-5, Zoning Hearing Board Hearing, September 4, 2019.
21
Id., at 6.
22
Id.
23
Id., at 4.
24
N.T. 6-7, Zoning Hearing Board Hearing, September 4, 2019. In the exchange, Appellant’s counsel
added, “I would just note for the record—,” and the board’s solicitor responded, “We know where the
burden lies, yeah, there’s no question about that.” N.T. 7, Zoning Hearing board Hearing, September
4, 2019.
25
N.T. 7, Zoning Hearing Board Hearing, September 4, 2019.
26
Id., at 7-20.
5
2019-11723 CIVIL TERM
27
past; a 56-year resident of the township who had made a complaint to the township in
28
2014 about the salvaging of mobile homes on the property; and the township’s zoning
29
officer.
The testimony of Appellant’s husband on direct examination may be summarized
as follows: He began utilizing the property for repair of vehicles and other machinery,
30
and for a non-vehicle salvaging operation, in 1983. Prior to formally opening a garage
for repairs in 1987, he spoke with one of the township supervisors and was told that
31
township approval would not be required. A similar response was elicited from the
supervisor prior to the installation of gasoline pumps at the site, with the caveat that
permits would be needed from the Department of Transportation for drive entrances and
32
from the state fire marshal for the pumps.
Permits were accordingly obtained from the Department of Transportation and
33
the fire marshal, and in 1987 the existing improvements were made in the form of a
34
garage, gas pumps, curbing, lighting, and macadam entrances to the property.
35
Ultimately, gasoline sales ceased in 2006.
Q When did you start the use of the property in this manner?
27
Id., at 20-30.
28
Id., at 31-39.
29
Id., at 39-47.
30
Id., at 8-9.
31
N.T. 10-11, Zoning Hearing Board Hearing, September 4, 2019.
32
Id., at 11.
33
Id.
34
N.T. 8, Zoning Hearing Board Hearing, September 4, 2019. It appears that the improvements were
actually made in 1988. See Township Exhibits 1-3, Zoning Hearing Board Hearing, September 4,
2019.
35
N.T. 9, Zoning Hearing Board Hearing, September 4, 2019.
6
2019-11723 CIVIL TERM
A Oh, I started that before I opened the garage, I was
doing repairs in 1983.
Q And for how long has that involved the storage of for
some period of time inoperable vehicles?
A Oh, almost from the beginning there have been
inoperable vehicles sitting there from almost day one.
Q Before you—
A And there was at times many more than what’s there
now.
Q So the uses ebbed and flowed but consistently done
for how long would you say.
A How long was I letting them sit there?
Q How long have you been using the property in this
manner?
A Oh, my since, like I say, 1987 is when I opened it up
36
completely.
On cross-examination, Appellant’s husband estimated that there were currently
37
eight vehicles on the property. In an exchange concerning these vehicles, he testified
as follows:
Q Are there unlicensed vehicles at the property?
A Yes, there probably is.
Q Okay. Are there inoperable vehicles at the property?
38
A Yes.
He declined to characterize as a junked vehicle one that he said had been sitting
on the property for several decades:
Q And you say you don’t own the vehicle?
A No.
Q Who owns it?
A One of my old customers.
Q Are they paying you rent to store their vehicle there?
36
Id., at 9-10.
37
Id., at 14.
38
Id.
7
2019-11723 CIVIL TERM
A No.
Q Is it basically a junked vehicle?
A It’s inoperative.
Q Okay. With no license and inoperable and does
it look like junk?
39
A Oh, no, it looks complete.
With respect to the acknowledgment in Appellant’s appeal of an “ongoing
scrapping business,” he provided the following explanation:
Q Your appeal document says ongoing scrapping
business, what does that mean?
A When I take something off a car that I think I’m going
to keep or use again I keep it. I put it on the pile.
Q Okay. So you take parts off some of the vehicles that
are there, put it in a pile.
A No, not what’s sitting there. I may have gotten some
scrap material say from my son-in-law or I go out and
I gathered up some stuff at an auction because I
figured I could use that piece of metal.
Q So your appeal says ongoing scrapping business. Are
you saying the scrapping business has nothing to do
with the vehicles that are there?
A No. I’m not saying I haven’t had cars that I’ve sent
away for scrap. A customer comes in, it’s just not
financially feasible to do anything with the car for
repairs.
Q You’re suggesting to this Board that you’ve had cars
that may have been there for 20 years and the owner
hasn’t claimed them and that they’re not an
inoperable, unlicensed, junked vehicle.
A Oh, no, the one may be unlicensed and it’s not
operable.
Q How about the other ones?
A One sitting there, I imagine, I don’t know if that guy’s
still in prison or not.
39
Id., at 14-15.
8
2019-11723 CIVIL TERM
Q Is that gentlemen paying you rent to store the vehicle
there?
A No.
Q Well, are you suggesting your operation is a parking garage
that you may park vehicles?
A Oh, no.
Q Well, I’m just trying to figure out what your application is, you
say scrapping business but you’re saying you have vehicles
there but you’re not a salvor, is that what you’re saying?
40
A I’m not—no, I don’t go out and try to buy cars for salvage.
In describing the accumulation of scrap materials, Appellant’s husband
responded to a question of the zoning hearing board’s solicitor as follows:
Q And then you’ve got a pile of scrap and debris or multiple
piles, is it one pile?
A Just one.
Q Just one pile, okay. For the parts that you hope to use in
your repair business, is there any way that they can be
stored inside a building?
A It would just take up a lot of space inside the building but
\[read: that?\] I would use for something else.
Q But if the Board said that if you wanted to continue storing
parts onsite that you had to put them in a building, could you
do that?
41
A No, I’d probably get rid of it.
No license had been obtained from the state for the business, according to his
42
testimony.
The expert witness called by the township identified himself as a professional
land surveyor, president of a local engineering company, and frequent attendee at
40
Id., at 15-16.
41
N.T. 18, Zoning Hearing Board Hearing, September 4, 2019.
42
Id., at 18-19.
9
2019-11723 CIVIL TERM
43
meetings of the township’s planning commission. Based upon his review of the
township’s file regarding the subject property, he confirmed that the landowner’s
highway occupancy permit application to the Pennsylvania Department of
Transportation for construction of two driveways, which was submitted in August of
44
1988, referenced only a “convenience store/gas station/repair garage” as the intended
45
use for the site.
Q Okay. Does anywhere on that application refer to any
type of salvaging operation?
A No.
Q Does anywhere on that application refer to any type of
scrapping use?
A No.
Q Does the application at all refer to storage of
unlicensed or inoperable vehicles?
46
A No.
The site plan supporting the application depicted the proposed use consistently with the
47
described operation.
Similarly, the township’s 1988 acknowledgment to PennDOT of its receipt of the
plan evidenced the limited use proposed for the property of a “convenience store/gas
48
station/repair garage.” This witness also opined that the storage of a junked and
43
Id., at 20-21.
44
See Township’s Exhibits 1, 3, Zoning Hearing Board Hearing, September 4, 2019.
45
N.T. 22, Zoning Hearing Board Hearing, September 4, 2019.
46
N.T. 22, Zoning Hearing Board Hearing, September 4, 2019.
47
Township Exhibit 1, Zoning Hearing Board Hearing, September 4, 2019.
48
Township Exhibit 2, Zoning Hearing Board Hearing, September 4, 2019; N.T. 23, Zoning Hearing
Board Hearing, September 4, 2019.
10
2019-11723 CIVIL TERM
inoperable vehicle for 20 plus years would not “be normal for an automobile repair
49
garage.”
Finally, the expert testified that, under Pennsylvania regulations in effect since
1977, a state permit would have been required for a business involved in salvage
50
vehicles and such an enterprise would have been subject to various other strictures.
Under the regulations referred to, a salvor was defined as “\[a\] person engaged in the
business of acquiring abandoned vehicles for the purpose of taking apart, junking,
51
selling, rebuilding or exchanging the vehicles or parts thereof.”
The resident of the township who testified was a former member of the board of
supervisors and a former magisterial district judge, who had lived in the township for 56
5253
years. He stated that during his two terms as a supervisor, commencing in 1987 or
54
1988, “\[n\]othing ever came before the Board in reference to any questions in
55
reference to that property.”
This witness testified that prior to 1991, when the township adopted a zoning
ordinance, Appellant’s husband operated a vehicle service and repair business on the
56
property, but that “there were no vehicles stored there at that time.” The vehicles he
observed in those days on the property “were there for repair but not being stored,” he
49
N.T. 27, Zoning Hearing Board Hearing, September 4, 2019.
50
Id., at 25-26.
51
67 Pa. Code § 253.2; see Township Exhibit 4, Zoning Hearing Board, Hearing, September 4, 2019.
52
N.T. 31, Zoning Hearing Board Hearing, September 4, 2019.
53
Id., at 31, 38.
54
Id., at 32, 38.
55
Id., at 39.
56
Id., at 32-33.
11
2019-11723 CIVIL TERM
57
testified. By way of contrast, “when you see vehicles setting there with weeds growing
58
around them you know that they’ve been there a long time,” he added.
In 2014, the witness had submitted a complaint to the township supervisors “in
reference to salvaging of mobile homes and vehicles” on the property, according to his
59
testimony. In part, the letter stated as follows:
During a time frame of at least 6 years, there has been
discussions at the Township Supervisors monthly meetings
reference to an illegal salvage operation within Hopewell
Township. The referred operation is located at 415 Newville
Road, Newburg, Pa. 17240. This is the location of a former
service garage/inspection station that is no longer used as
such business. The business was operated by \[Appellant’s
husband\]. This former business closed and has not operated
as a garage/inspection station for an extended period of
time … .
The illegal operation comprises of mobile homes being
placed on the property for the purpose of striping the unit for
salvage value. This does not meet the Township Ordinance.
To my knowledge, there has never been an application
submitted to the Township for a variance on the land use … .
You must be licensed as a Vehicle Salvage Dealer or Repair
Towing Service prior to obtaining a certificate of
60
authorization for processing abandoned vehicles … .
The witness explained the reference in his 2014 letter to the cessation of the
service garage/inspection business on the property as of that time as follows:
Well, from observing I would say that there was no customers going
in there with vehicles for repair and no inspections, gasoline pumps
were inoperative. I understand that \[Appellant’s husband\] was
working for another garage over in Path Valley Area for a while so
57
Id., at 34.
58
N.T. 35, Zoning Hearing Board Hearing, September 4, 2019.
59
Id., at 31.
60
Township Exhibit 5, Zoning Hearing Board Hearing, September 4, 2019. Eventually, the mobile home
aspect of the operation of Appellant’s husband on the property appeared to stop, according to the
witness. N.T. 37, Zoning Hearing Board Hearing, September 4, 2019.
12
2019-11723 CIVIL TERM
my opinion was the building was closed—the business was closed
61
and abandoned, you know, for at least over a year.
The testimony of the township’s zoning officer may be summarized as follows: A
62
township resident since 1986, he had been employed as the municipality’s zoning and
63
permit officer since 2003. In that capacity he had in the past successfully prosecuted
Appellant and her husband with respect to the previously mentioned storage and
64
scrapping of mobile homes, and he had issued the April 11, 2019, enforcement notice
65
to Appellant which is a subject of this opinion.
Subsequent to 1991, when the township adopted a zoning ordinance, he
66
observed unlicensed, inoperable vehicles on the subject property under the following
circumstances:
Q Was it pretty clear some cars were customers of the repair
shop that he’d bring in and do repair work on?
A Yes.
Q And is it clear that some of the other vehicles, specifically the
ones you’re referring to in your enforcement notice, have
been there for an extensive period of time?
A There are some, yes.
Q And are those vehicles inoperable and unlicensed, from your
observations?
A Yes.
Q \[W\]hat do these vehicles look like to you?
A Well, they’re complete vehicles. They’re rusted up
some and, of course, the weeds are growing up
around them. They haven’t been moved in years.
61
N.T. 36, Zoning Hearing Board Hearing, September 4, 2019.
62
Id., at 40.
63
Id., at 39-40.
64
Id., at 40.
65
Id.
66
Id., at 41.
13
2019-11723 CIVIL TERM
When we were doing the mobile home thing he did
remove some but then he brought some back and but
the ones that are setting there now have been there
for a long period of time.
Q Not vehicles that are being repaired as customers of
the repair station, is that right?
67
A That’s correct.
At some point the garage business of Appellant’s husband slowed down, and
following a heart attack suffered by him it did not appear that “the garage did much
68
business.” As of the hearing in 2019:
Q Is the repair station basically closed?
A My opinion, yes.
Q How about inspections, can he do inspections there?
A I don’t believe \[Appellant’s husband\] has his
69
inspection license at the building anymore.
On cross-examination, on the subject of a “dump, landfill or disposal site”
prohibited under Section 11.04B of the township’s zoning ordinance, the zoning officer
cited “the products that was laying around the property. There’s tires, there’s pieces of
70
construction material, just various things that’s been laying around.” He conceded that
“to \[his\] knowledge” Appellant’s husband did not “allow for free or for cost any individual
to bury trash” on the property, and did not “charge individuals to dump their residential,
71
commercial or industrial trash there.” He noted, however, that “tires and construction
72
materials” were common constituents of a dump.
67
N.T. 41-42, Zoning Hearing Board Hearing, September 4, 2019.
68
Id., at 41.
69
Id., at 42.
70
Id., at 44.
71
Id., at 44.
72
Id.
14
2019-11723 CIVIL TERM
Following the presentation of evidence, the zoning hearing board unanimously
rejected Appellant’s contention that the activity described in her appeal predated the
township’s zoning ordinance so as to be sustainable as a pre-existing nonconforming
7374
use. On October 15, 2019, a written decision was issued by the board to this effect.
75
The decision noted the presence on the property of abandoned vehicles and “a
76
significant amount of scrap metal.” In this regard, while acknowledging the operation
of a repair garage, the board found that “\[t\]he Applicant did not supply sufficient
information to establish that a separate scrapping or salvage business existed prior to
77
the adoption of the Zoning Ordinance of Hopewell Township.” The following
conclusions of law were made:
1.
The Applicant’s property at 415 Newville Road, Newburg, Hopewell
Township, Pennsylvania was operating a convenience store, gas
station, and repair garage of motor vehicles prior to April of 1991
when Hopewell “Township enacted zoning.
2.
Spare parts and some vehicles used for spare parts were kept at
the property prior to April of 1991.
3.
At no time was a salvage or a “scrapping business” applied for and
approved by Hopewell Township.
4.
There is no evidence of the presence of a pre-existing, non-conforming
use of a salvage or “scrapping business” at 415 Newville Road, Newburg,
.78
Pennsylvania 17240
73
N.T. 49, Zoning Hearing Board Hearing, September 4, 2019.
74
Decision of Zoning Hearing Board.
75
Id., at Finding of Fact 8.
76
Id., at Finding of Fact 9.
77
Id., at Discussion.
78
Id., at Conclusions of Law.
15
2019-11723 CIVIL TERM
Accordingly, the decision of the board in response to Appellant’s request for its
sanction of “a scrapping business \[on the theory that it\] predated the Hopewell
79
Township zoning Ordinance adopted in April 1991” was as follows:
The members of the Hopewell Township Zoning Hearing Board,
Timothy C. Madeiros, Chairman, Shawn Hensel and Duane Gipe
unanimously found that the use of a salvage or scrapping business
which pre-dated the enactment of the Zoning Ordinance in April of
1991 did not exist. Any materials on site were for the use of the
80
vehicle repair garage and did not constitute a separate business.
From this decision Appellant filed an appeal to this court on November 14,
81
2019. The issues presented on appeal have been expressed in Appellant’s brief as
follows:
A. Whether the Board committed an error of law and abused its
discretion by assigning the burden of proof to Appellant and
requiring Appellant to present evidence of affirmative
defenses prior to the Township presenting evidence of a
Zoning Ordinance violation.
B. Whether the Board committed an error of law and abused its
discretion by failing to determine whether a Zoning
Ordinance violation occurred.
C. Whether the Board abused its discretion by concluding, as a
matter of law and without substantial evidence, Appellant’s
Current Use did not constitute a lawful, pre-existing, non-
82
conforming use.
On the third issue, Appellant’s brief has included a theory not previously advanced that
Appellant’s “Current Use” represents “a natural expansion of \[the\] repair shop business,
83
which began in 1987.”
79
Id., at Discussion.
80
Decision of Zoning Hearing Board, Decision.
81
Appellant’s Notice of Appeal to Court of Common Pleas.
82
Plaintiff’s Brief in Support of Appeal, at 3, filed January 28, 2020.
83
Id., at 12.
16
2019-11723 CIVIL TERM
Relief from the zoning hearing board’s decision has been requested by Appellant
in the notice of appeal as follows:
A. That the Decision be REVERSED; or, in the alternative,
B. That the case be REMANDED to the board to further develop the
record and made necessary findings; and
C. Any such other relief as this Honorable Court deems just and
84
proper.
DISCUSSION
Statement of law. In an appeal from a zoning hearing board’s decision with
respect to the propriety of a zoning officer’s enforcement order, where the court does
not take additional evidence, the scope of review by the court is limited to determining
whether the board committed an error of law or a manifest abuse of discretion. Appeal
of Summers, 551 A.2d 1134 n.4 (Pa. Cmwlth. 1988). The court “may conclude that the
\[b\]oard abused its discretion only if its findings are not supported by substantial
evidence… . By ‘substantial evidence’ we mean such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Valley View Civic
Ass’n v. Zoning Board of Adjustment, 462 A.2d 637, 640 (Pa. 1983) (citations omitted).
Contentions not raised before a zoning hearing board are deemed waived. See Myers
v. State College Zoning Hearing Board, 530 A.2d 526 (Pa. Cmwlth. 1987).
The “court is bound by the \[zoning hearing board’s\] determinations of credibility
and evidentiary weight.” Wyomissing Area School District v. Zoning Hearing Board of
Wyomissing Borough, 128 A.3d 851, 855 n.2 (Pa. Cmwlth 2015) (citation omitted).
84
Appellant’s Notice of Appeal to Court of Common Pleas, prayer for relief.
17
2019-11723 CIVIL TERM
However, an independent review of the record by the court is required to determine
whether the board’s findings of fact are supported by substantial evidence. Id.
“In any appeal of an enforcement notice to the zoning hearing board, the
municipality shall have the responsibility of presenting its evidence first.” 53 P.S.
§ 10616.1(d). In addition, where a violation is contested the enforcement notice must
be supported by substantive evidence of the violation. See Hartner v. Zoning Hearing
Board of Upper St. Clair Township, 840 A.2d 1068 (Pa. Cmwlth. 2004). On the other
hand, on an appeal from a municipality’s enforcement notice “\[t\]he burden is on
appellant to prove \[an alleged\] prior nonconforming use.” Little v. Zoning Hearing Board
of Abington Township, 357 A.2d 266, 267 (Pa. Cmwlth. 1976).
“Burden of proof” can be “an ambiguous term insofar as it connotes, either jointly
or separately, the concepts of burden of going forward with evidence and burden of
persuasion (i.e., the risk of nonpersuasion).” Commonwealth v. Sojourner, 408 A.2d
1108, 1112 (Pa. Super. 1979). The former concept relates merely to the order of proof,
and a lack of orthodoxy in this respect in a zoning case may prove to be
“inconsequential.” Broad Acres Construction, Inc. v. Zoning Hearing Board of North
85
Coventry Township, 454 A.2d 675, 677 (Pa. Cmwlth. 1983).
Application of law to facts. In the present case, a fair reading of the transcript of
the commencement of proceedings before the zoning hearing board on September 4,
2019, indicates that Appellant’s counsel chose not to pursue an objection to the order of
85
In a review of administrative agency decisions, for instance, “\[t\]he general rule that there will be no
reversal because of harmless error has been applied to error in, or arising out of, … the order of
proof.” 101 C.J.S. Workers’ Compensation § 1437 (2020). The relegation of order-of-proof
irregularities to the category of harmless error is of long standing. See, e.g., Fisher v. Ruch, 1900 WL
5047 (Pa. Super. 1899).
18
2019-11723 CIVIL TERM
86
proof adopted. This waiver vitiates Appellant’s argument for relief based upon the
order-of-proof issue recited above, particularly given the lack of substantive
consequence generally attributed to errors in the order of proof.
With respect to the board’s purported failure “to determine whether a Zoning
Ordinance violation occurred,” as asserted in Appellant’s second issue, it seems clear to
the court that such a determination was implicit in the decision. First, Appellant’s appeal
from the enforcement order, proffering the defense of a pre-existing, nonconforming
use, acknowledged the existence of “an ongoing scrapping business” and by the nature
87
of the defense assumed the nonconformity of the activity alleged. Second Appellant’s
counsel stipulated at the hearing to a nonconformity in connection with the activity
88
involving inoperable vehicles proscribed in Section 11.04C of the zoning ordinance.
Third, the nonconforming quality of the activity on the property as to the storage of
inoperable vehicles under Section 11.04C and the accumulation of junk characteristic of
a dump under Section 11.04B of the zoning ordinance was inferable from the testimony
89
of both sides, with the conflict in testimony being focused upon the duration of the
90
nonconformity. Under these circumstances, the court does not believe that the
township’s burden of persuasion on the issue of violation was unmet or that a more
explicit expression by the board of nonconformity with the ordinance would serve any
useful purpose.
86
See text accompanying notes 17-22 supra.
87
See text accompanying notes 13-15 supra.
88
See text accompanying note 19 supra.
89
See text accompanying notes 34-37, 52-54, 62-68. For instance, with respect to the size of the pile of
accumulated scrap and debris, Appellant’s husband estimated that it would “take up a lot of space” if
transferred to the building on the premises, and that he would “probably just get rid of it” rather than
relocate it. See text accompanying note 37.
90
See text accompanying notes 27-38, 53-54, 62-68.
19
2019-11723 CIVIL TERM
Finally, with respect to Appellant’s third issue, the question of the duration of
nonconformity was one of credibility, the burden of persuasion as to which was upon
Appellant. Given the evidence before the board as recounted above, and based upon
an independent review of the record by the court, the court is not able to agree with
Appellant that the board’s determination on this issue adverse to Appellant’s position
was unsupported by substantial evidence. The suggestion in Appellant’s brief that the
offending activity could be considered a natural expansion of a repair shop was not
presented to the board, and finds no specific support in the form of expert testimony in
the record or cited case law.
Accordingly, the following order will be entered:
ORDER OF COURT
th
AND NOW, this 8 day of August 2020, upon consideration of Appellant’s Notice
of Appeal from the Decision of Zoning Hearing Board of Hopewell Township dated
October 15, 2019, and for the reasons stated in the accompanying opinion, the decision
of the board is affirmed.
By the Court,
________________________
Thomas A. Placey C.P.J.
Distribution:
James P. Welch, Esq.
Marcus A. McKnight, III, Esq.
Hubert X. Gilroy, Esq.
20