Loading...
HomeMy WebLinkAbout99-2286 civilKEYSTONE LODGING ENTERPRISES, INC. Vo UPPER ALLEN TOWNSHIP ZONING HEARING BOARD Vo UPPER ALLEN TOWNSHIP · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · NO. 99-2286 CIVIL TERM · · · CIVIL ACTION- LAW IN RE' APPEAL FROM DECISION OF ZONING HEARING BOARD BEFORE BAYLEY, GUIDO, JJ. AND NOW, this ORDER OF COURT day of APRIL, 2000, the decision of the Upper Allen Township Zoning Heating Board is AFFIRMED and the appeal therefrom is DISMISSED. By the Edward E. Guido, J. William E. Miller, Jr., Esquire 600 North 12th Street, Suite 101 Lemoyne, Pa. 17043 Dusan Bratic, Esquire 101 Office Center - 101 South US Route 15 Dillsburg, Pa. 17019 A. Mark Winter, Esquire 310 W. Chocolate Ave. Hershey, Pa. 17033 KEYSTONE LODGING ENTERPRISES, INC. Vo UPPER ALLEN TOWNSHIP ZONING HEARING BOARD UPPER ALLEN TOWNSHIP · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA ·CIVIL ACTION- LAW · · NO. 99-2286 CIVIL TERM IN RE: APPEAL FROM DECISION OF ZONING HEARING BOARD BEFORE' BAYLEY, GUIDO, JJ. OPINION AND ORDER OF COURT KeyStone Lodging Enterprises, Inc. (hereinafter "Appellant") is the owner of a parcel of land (hereinafter "the Property") located at 385 Cumberland Parkway, Upper Allen Township, Pennsylvania. Erected on the Property is a three story hotel operating under the nationwide franchise known as Wingate Inn. Prominently displayed on the exterior of the building are four wall signs identifying the premises as a Wingate Inn. On January 2, 1998, Upper Allen Township (hereinafter "Township") issued an occupancy permit for the hotel. It opened for business on the same day. On August 28, 1998, the Township zoning officer sent an enforcement letter to Appellant indicating that the four wall signs were in violation of the Township's zoning ordinance which limits the number of business signs allowed on a property.~ Appellant applied to the Zoning ~ Section 245-63 of the Upper Allen Township ordinance precludes the placement of more than one sign of any type on the Property. NO. 99-2286 CIVIL TERM Heating Board of Upper Allen Township (hereinafter "Board") for appropriate relief. Heatings were held before the Board on December 10, 1998, February 11, 1999, and March 11, 1999. By written decision dated March 23, 1999, the Board denied the relief requested by Appellant. This appeal followed. The Township filed a notice of intervention pursuant to 53 P.S. § 11004-A. Appellant and the Township have briefed and argued their respective positions. This matter is now ready for disposition. SCOPE OF REVIEW When, as here, we have not received any additional evidence in connection with an appeal from the decision of a zoning heating board, our scope of review is limited to a determination of whether the board abused its discretion or made an error of law. Board of Supervisors of Southampton Township v? Zoning Hearing Board of Southampton Township, 124 Pa. Commonwealth 103,555 A.2d 256 (1989). A zoning hearing board abuses its discretion "only if its findings are not supported by substantial evidence." Valley View ciVic Association v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637, 640 (1983). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. DISCUSSION In the proceedings before the Board, Appellant based its request to keep the wall signs on several distinct theories. In the first instance, it argued that it had acquired a vested fight or variance by estoppel with regard to those signs. In the alternative, it contended that it was entitled to a special exception. Finally, it argued that it met'the requirements for the grant of a variance. The Board concluded that appellant was not NO. 99-2286 CIVIL TERM entitled to the relief it requested under any of the various theories. In its appeal, Appellant argues that the Board incorrectly concluded that it did not qualify for a vested fight or variance by estoppel. It also contends that the Board erred in concluding that it was not entitled to a variance.2 Applying the standard of review set forth above, we are satisfied that the Board acted properly. Vested Right Or Variance By Estoooel. "Variance by estoppel and vested fights are related theories, with overlapping elements, developed to rectify inequities created by a property owner's good faith reliance on government action which resulted in expenditure of substantial unrecoverable funds by the property owner." Bernie Enterprises v. Hilltown Township Zoning Hearing Board, 657 A.2d 1364, 1367 (Pa. Cmwlth. 1995). The concept of vested right comes into play when a permit has been issued by a governmental authority. The Pennsylvania Supreme Court has delineated "five factors that must be weighed in determining whether one has acquired vested rights as the result of a permit issued by the government." Petrosky v. Zoning Hearing Board of Upper Chichester Twp., 485 Pa. 501,402 A.2d 1385, 1388 (1979). Those factors may be paraphrased as follows: 1. Appellant's due diligence in attempting to comply with the law; 2. its good faith throughout the proceedings; 3. its expenditure of substantial unrecoverable funds; 4. the expiration of the appeal period in connection with the issuance of the permit; and 2 Appellant's Notice of Land Use Appeal also included a claim that the Board erred in failing to grant its request for a special exception. However, this issue was not briefed and is deemed abandoned pursuant to Local Rule 210-7. NO. 99-2286 CIVIL TERM 5. the insufficiency of the evidence to prove that individual property fights or the public health, safety or welfare would be adversely affected by the use of the permit. Id. The burden of establishing the above factors is on the party seeking to acquire a vested right in the permit issued in error. Randolph Vine Associates v. 7.oninE Board of Adjustment of Philadelphia, 132 Pa. Commonwealth 452, 573 A.2d 255 (1990). Appellant argues that the issuance of the building permit for the hotel gave it a vested right to use the four wall signs. Its position is based upon the fact that those signs appear on the plans submitted to the Township in order to secure the building permit. The Board concluded that Appellant had not met the criteria necessary to establish a vested fight to the signs. There is substantial evidence in the record to support this conclusion. In the first instance, the Board could reasonably conclude from the record that Appellant did not exercise due diligence in attempting to comply with the law. The zoning ordinance clearly provides that no permanent sign can be erected without first obtaining a sign permit and paying a fee.3 The ordinance also limits the number of signs which may be erected on the Property.4 In fact, there is an entire Article in the zoning ordinance dedicated to the requirements for, and restrictions on, signs,s There is no doubt that Appellant was aware of this Article and the restrictions contained therein. During the course of constructing the hotel, it applied for a variance from the height restrictions Zoning ordinance The Township of Upper Allen § 245-76 A. Zoning ordinance The Township of Upper Allen § 245-63. Zoning ordinance The Township of Upper Allen Article VII. NO. 99-2286 CIVIL TERM contained in § 245-64 so that it could erect a fifty (50) foot pole sign.6 The pole sign was installed in November or December of 1997, at about the same time as the Wall signs.7 In addition, page two of the building permit application clearly indicated that other permits may be required.8 Those permits included, inter alia, "plumbing" as well as "sign or billboard.''9 The drawings and plans submitted to the Township included more than thirty pages of detail on the structure to be built,l° For Appellant to argue that it was entitled to rely on the building permit to erect the wall signs is no more logical than contending that the issuance of the building permit vitiated the need to obtain a plumbing permit.TM The record also supports the conclusion that Appellant did not expend "substantial unrecoverable funds" in reliance upon the building permit. The permit was issued for the construction of a multi-million dollar hotel. 12 The wall signs in question were but an infinitesimal portion of the cost of the project.~3 The hotel was built and is operating today. It is certainly logical to conclude that the relatively minor cost of the signs could be recovered from the day to day operations of the business. The record supports the finding that Appellant did not use due diligence in attempting to comply with the law. It also supports the finding that Appellant did not 6 Zoning Hearing Board Transcript of February 11, 1999 Proceedings, p.7. 7 Zoning Hearing Board Transcript of February 11, 1999 Proceedings, pp. 31-33. 8 Appellant's Exhibit G. 9 Appellant's Exhibit G. l0 Zoning Hearing Board Transcript of February 11, 1999 p. 16. ~ Appellant's Exhibit G clearly establishes that it obtained and paid for a plumbing permit. 12 The building permit indicates the cost of the building to be $2.93 million. (Appellant's Exhibit G). 23 Appellant indicated that the total cost of the project was $6 million while the wall signs cost about $2500 each. (Zoning Hearing Board Transcript of March 11, 1999 Proceedings, p.8, and February 11, 1999 Proceedings p. 72). NO. 99-2286 CIVIL TERM expend substantial unrecoverable finds in reliance upon the building permit. Therefore, the Board did not abuse its discretion in concluding that Appellant did not have a vested right to the wall signs. While closely related, the concept of variance by estoppel is separate and distinct from the concept of vested rights. The Commonwealth Court has enunciated the factors necessary to establish a variance by estoppel as follows' 1. A long period of municipal failure to enforce the law, when the municipality knew or should have known of the violation, in conjunction with some form of active acquiescence in the illegal use. However, a mere showing that a municipality has failed to enforce the law for a long period of time is insufficient in itself to support the grant of a variance. 2. Whether the landowner acted in good faith and relied innocently upon the validity of the use throughout the proceedings. But in assessing whether a landowner's reliance upon municipal inaction is reasonable, a landowner is duty bound to check the property's zoning stares before purchase. 3. Whether the landowner has made substantial expenditures in reliance upon his belief that his use was permitted. 4. Whether the denial of the variance would impose an unnecessary hardship on the applicant, such as the cost to demolish an existing building. Mucy v. Fallowfield Twp. Zoning Heating Board_, 147 Pa. Commonwealth 644, 648, 609 A.2d 591,592 (1992). The party seeking an entitlement to a variance by estoppel has the burden of proving all of the above elements by "clear, precise and unequivocal evidence." Teazers v. Zoning Board of Adjustment of City of Philadelphia, 682 A.2d 856, 860 (Pa. Commonwealth 1996). In the instant case, there is substantial evidence of record to support a conclusion that Appellant failed to prove any of those elements. Therefore, the NO. 99-2286 CIVIL TERM Board did not abuse its discretion in concluding that Appellant did not meet the requirements for a variance by estoppel. Variance Appellant's alternative argument is that it is entitled to a variance under the law because of the unique topography of the Property. The ground on which the hotel was built sits well below the surfaces of Routes 11/15 and the Pennsylvania Turnpike. Since many of its customers are drawn from those highways, Appellant argues that the wall signs are vital to its business. Section 910.2(a) of the Municipalities Planning Code~4sets forth the elements which need to be proven by the appellant in order for a variance to be granted. They are as follows: (1) That there are unique physical circumstances,.., or exceptional topographical or other physical conditions peculiar to the particular property... (2) That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning ordinance and that the authorization of a variance is therefore necessary to enable the reasonable use of the property. (3) That such unnecessary hardship has not been created by the appellant. (4) That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare. (5) That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue. 14 53 P.S. § 10910.2(a). NO. 99-2286 CIVIL TERM 53 P.S. § 10910.2(a). All of those elements must be proven, if relevant, in order for a variance to be granted. Id. The Board did find that there are topographical problems associated with the property. However, it also found that those problems were corrected by the previous grant of a variance for the construction of a 50 foot high free standing pole sign. The Board also found that the Property could be developed and reasonably used in accordance with the zoning ordinance.15 Both of those findings are adequately supported by the record. Therefore, we may not disturb the Board's conclusion that Appellant is not entitled to a variance. For the reasons set forth above, we will enter the order that follows. ORDER AND NOW, this 25T____~H day of APRIL, 2000, the decision of the Upper Allen Township Zoning Heating Board is AFFIRMED and the appeal therefrom is DISMISSED. By the Court, William E. Miller, Jr., Esquire Dusan Bratic, Esquire A. Mark Winter, Esquire :sld [s/Edward E. Guido Edward E. Guido, J. ~s "To prove an unnecessary hardship warranting the grant of a variance, the applicant must demonstrate that physical characteristics of the property make use of the property for a permitted purpose impossible or possible only at a prohibitive expense." Green Town¢$ Financial Com. v. Zoning Hearing Board of Lower Merion Township, 157 Pa. Commonwealth 454, 459, 630 A.2d 492, 4794 (1993).