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HomeMy WebLinkAbout99-7394 civilDRB, INC., t/d/b/a SUPERIOR HOMES, INC., Appellant: VS. BUILDING CODES BOARD OF APPEALS OF UPPER ALLEN TOWNSHIP, Appellee : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA 99-7394 CIVIL CIVIL ACTION - LAW IN RE- PLAINTIFF'S APPEAL OF DECISION OF BUILDING CODES BOARD OF APPEALS OF UPPER ALLEN TOWNSHIP BEFORE HOFFER, P.J., HESS AND GUIDO, J.J. ORDER AND NOW, this ! Z ff day of December, 2000, the decision of the Building Codes Appeal Board of Upper Allen Township is REVERSED and the enforcement notice as to the within appellant DISMISSED. BY THE COURT, Melvin E. Newcomer, Esquire For the Appellant Hess, J. Anthony E. Marrone, Esquire For the Appellee :rlm DRB, INC., t/d/b/a SUPERIOR HOMES, INC., Appellant: VS. BUILDING CODES BOARD OF APPEALS OF UPPER ALLEN TOWNSHIP, Appellee : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA 99-7394 CIVIL CIVIL ACTION- LAW IN RE: PLAINTIFF'S APPEAL OF DECISION OF BUILDING CODES BOARD OF APPEALS OF UPPER ALLEN TOWNSHIP BEFORE HOFFER, P.J., HESS AND GUIDO, J.J. OPINION AND ORDER This is an appeal from a decision of the Building Codes Board of Appeals of Upper Allen Township. The Board, by decision dated October 21, 1999, sustained an enforcement notice issued by Upper Allen Township. The notice, in turn, alleged that a certain mobile home, located at 78 Rolo Court was not properly installed. The township contends that the mobile home was not installed in accordance with the installation manual appropriate to this mobile home and therefore its installation is in violation of the Building Officials and Code Administrators (BOCA) Code as adopted by the township. In a nutshell, the position of the plaintiff is that there is no legal requirement that the mobile home be installed in accordance with its installation manual and that the installation at 78 Rolo Court is not in violation of the BOCA Code or any other statute or regulation. We agree. The standard of review in this matters is well established. Where, as here, a complete record was developed before the local agency, the court reviewing the matter on appeal must affirm the local agency unless it is determined that constitutional rights were violated, that an error of law was committed, 99-7394 CIVIL that the procedure before the agency was contrary to statute or that necessary findings of fact were unsupported by substantial evidence. Public Advocate v. Philadelphia Gas Commission, 544 Pa. 129, 674 A.2d 1056, 1060 (1996). No stenographic record was made of the proceeding before the board. Detailed minutes, however, are available and have been filed as part of the record. Both sides to this controversy agree that the record is sufficient for us to consider the merits of this appeal. As previously noted, the enforcement notice relies primarily on the fact that the mobile home was not installed in accordance ~with the manufacturer's installation manual. Based on that, the township cited appellant under section 420.2 of the BOCA Code. That section provides, in relevant part, as follows' 420.2. Construction' Residential mobile units shall be of an approved design and shall be constructed in accordance with the applicable ordinances and statutes. At the hearing in this case, Keith Gingrich, the enforcement code officer, testified that he considered the installation manual to be part of the "approved design" of the mobile home. He was unable, however, to cite any provision of either the BOCA Code or any other ordinance within Upper Allen Township for this proposition. The installation manual provides for the installation of the mobile home on foundation piers with footings. The mobile home in question was installed like several others placed in Rolo Court after 1993. Testimony was that all of these homes have piers but no footings.1 ~ The occupants of the home, Randy Clark and Terry Clark, have complained that the walls of the mobile home are buckling. There is suggestion that the buckling has been caused by the absence of footings. Liability to the Clarks by virtue of faulty installation would flow in an action by them against the instant appellant. Our holding in this local agency matter in no way is intended to predict whether Superior Homes is liable to the Clarks for damages. 2 99-7394 CIVIL The argument of the board is that an "approved" design under the BOCA Code is a design approved by the code enforcement officer. Nowhere in the ordinances of the township, however, is there any indication that this is so, nor any advance notice as to the type of installation which will be "approved" by the code enforcement officer. In essence, the township argues that the same person who enforces the code is vested with the authority to define its terms. This circular argument is untenable. The minutes of the township contain their acknowledgment that the approval of the design of a mobile home is within the purview of the Department of Housing and Urban Development, a federal agency. Regulations dealing with the design of mobile homes are specifically set forth in the Code of Federal Regulations are 24 C.F.R. Chapter XX, Section 3280.1 et seq. Section 3280.1 sets forth the scope of the regulations and provides as follows' § 3280.1 Scope. This standard covers all equipment and installations in the design, construction, transportation, fire safety, plumbing, heat-producing and electrical systems of manufactured homes which are designed to be used as dwelling units. This standard seeks to the maximum extent possible to establish performance requirements. In certain instances, however, the use of specific requirements is necessary. These regulations also specifically define the word "approved." Section 3280.2 defines the word "approved" as follows' Approved, when used in connection with any material, appliance or construction, means complying with the requirements of the Department of Housing and Urban Development. The mobile home in question is a HUD-approved home. It is clear to us that "approved design" as that term is used in the BOCA Code means approved by HUD. We agree, in any event, with 99-7394 CIVIL appellant that section 420.2 of the BOCA Code deals with the construction of mobile homes and not their installation. Section 420.3.1 in the BOCA Code contains a specific requirement dealing with the installation of a mobile home within a mobile home park. That section provides, in relevant part: 420.3.1 Anchorage and Tie-Down: Every parking space for mobile units shall be provided with devices for anchoring the unit to prevent overturning or uplift. The owner of the parking space shall anchor or cause to be anchored all mobile units located on the parking space. Where concrete platforms are provided for the parking of mobile units, anchorage shall be provided by eyelets embedded in the concrete with adequate anchor plates or hooks, other suitable means. The anchorage shall be adequate to withstand wind forces and uplift as required in Chapter 16 for building and structures, based upon the size and ~veight of the units. Clearly, the township had the foregoing language in mind when it issued the building permit for the installation of the Rolo Court mobile home. The remarks section of the building permit contains the language "tie downs required." In the space marked "basement walls or foundation" a notation of"N/A" appears. Nowhere in the building permit is there any reference to installation manual requirements. In conclusion, we agree with the appellant that the township did not have the unfettered discretion to require that the mobile home be installed in accordance with the installation manual. We agree, therefore, that the enforcement notice should be dismissed. 99-7394 CIVIL ORDER AND NOW, this day of December, 2000, the decision of the Building Codes Appeal Board of Upper Allen Township is REVERSED and the enforcement notice as to the within appellant DISMISSED. BY THE COURT, Melvin E. Newcomer, Esquire For the Appellant Anthony E. Marrone, Esquire For the Appellee :rim