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HomeMy WebLinkAbout2007-2012 Civil CAROL A. GEORGE : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : V. : : ZONING HEARING BOARD OF : NORTH MIDDLETON TOWNSHIP : 07-2012 CIVIL TERM IN RE: APPEAL FROM DENIAL OF VARIANCE BEFORE BAYLEY, J. AND EBERT, J. OPINION AND ORDER OF COURT Bayley, J., December 20, 2007:-- Carol A. George resides at 2 West Middlesex Drive, North Middleton Township, Cumberland County. She sought a variance to operate a wrecker and towing service business on her property. The North Middleton Township Zoning Hearing Board denied the variance. George filed this appeal. No additional evidence was taken, and October 3, 2007 the appeal was briefed and argued on . George does not contest the conclusion of the Zoning Hearing Board that the business operated on her property does not meet the criteria of a home occupation under the North Middleton Township Zoning Ordinance. She maintains, however, that the Board erred as a matter of law in not granting her a variance by estoppel. Our scope of review is whether there was an error of law or an abuse of discretion by the Great Valley School District v. Zoning Hearing Board Zoning Hearing Board. See of East Whiteland Township, 863 A.2d 74 (Pa. Commw. 2004). An abuse of Id. discretion is where findings are not supported by substantial evidence. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to 07-2012 CIVIL TERM Id. support a conclusion. December 19, 2006 On , North Middleton Township notified George that the wrecker and towing business being operated on her property would no longer be permitted. She filed for a variance on January 22, 2007. The hearing was conducted on March 13, 2007. The Zoning Hearing Board found the following facts that are relevant on the issue raised in this appeal: The Applicant has owned her residence since 1994. The property consists of approximately 2.3 acres currently improved with a residential dwelling and a large detached garage. The Applicant’s property is located in the Suburban Residential (R-1) Zoning District. The Applicant’s companion, Gerald E. Orris, began residing at the property in or about 1999. Mr. Orris owns and operates a business known as “Jerry’s Towing.” The Applicant has no ownership in said business, nor is she employed by the business. When he first began residing at the Applicant’s residence, Mr. Orris owned two business trucks which he parked at the property. By 2003, Mr. Orris’ business had expanded to the point where he utilized four trucks, a standard tow truck and three rollback trucks, in the operation of the business. In or about 2005, the garage now located on the property was constructed. The garage, approximately 30’ by 64’ in size, accommodates the parking of the four trucks. Mr. Orris employs four drivers in the operation of his business. Two drivers report for work at 7:00 a.m., Monday through Friday, and take two of the trucks from the property. These two drivers return to the property at or about 3:00 p.m., at which time the other two drivers take two trucks from the property. The two evening drivers return with the trucks at or about 11:00 p.m. Mr. Orris frequently is called for a night towing job between the hours of 11:00 p.m. to 7:00 a.m., which he generally responds to personally. Mr. Orris takes weekend calls for service and occasionally requires the assistance of one or more of his drivers. None of the four employees reside at the premises. -2- 07-2012 CIVIL TERM In February, 2007, Mr. Orris’ business responded to 590 service calls. The property is located southeast of the intersection of West Middlesex Road and Spring Road (Route 34). The business frequently responds to police calls, which at times requires the towing of a vehicle to the property for temporary storage. Mr. Orris has had up to three vehicles temporarily stored at the property at any one time. North Middleton Township Police frequently use Jerry’s Towing because of his rapid response time. The business trucks are generally parked in the garage but on occasion are parked in the driveway for limited periods of time during the day. Several neighbors, most of whom reside on West Mulberry Hill Road, expressed safety concerns of trucks backing into the driveway off West Middlesex Road and annoyance of noise from the trucks operating at night. The Applicant intends to erect a solid wooden fence on part of the eastern boundary of the property abutting the property of neighbors on West Mulberry Hill Road. Mr. Orris owns property in Shermans Dale, Perry County, with an enclosed area for storage of vehicles. Mucy v. Fallowfield Township Zoning The Zoning Hearing Board cites Hearing Board of Washington County, 147 Pa. Commw. 644 (1992), in which the Commonwealth Court of Pennsylvania set forth the factors in determining whether a variance by estoppel should be granted: 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 status 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 -3- 07-2012 CIVIL TERM hardship on the applicant, such as the cost to demolish an existing building. Mucy The fact stated by the Court in were: Appellants are owners of two lots, numbers 22 and 23, in Fallowfield Township, Washington County, Pennsylvania. The lots are zoned R-1, residential use only. Appellants erected a home with an attached garage on lot 22, and built a separate concrete block garage on lot 23. The concrete block garage is used as a commercial automobile repair and inspection station. Appellants built the concrete block garage in May of 1988, and began using the garage for automobile repairs in February of 1989. Appellants also began using the garage as an inspection station in June of 1989. Shortly thereafter, the township informed Appellants that their use was not permitted under the Fallowfield Township zoning ordinance, and that Appellants needed to apply for a variance. . . . The Board issued a decision on July 11, 1990 denying the application for a variance. On appeal, the Court of Common Pleas of Washington County affirmed. The Commonwealth Court affirmed, stating: Appellants contend that they have satisfied the first factor because, although their impermissible use only existed for several months before they were told by the township that they needed to apply for a variance, case law has not defined what is considered a “long period” of municipal inaction. In addition, Appellants contend that the township actively acquiesced in the impermissible use because several township officials, in their individual capacity, patronized the business. In support of their contention, Appellants cite the case of Caporali v. Ward, 89 Pa.Commonwealth Ct. 621, 493 A.2d 791 (1985), where a variance by estoppel was granted after only two years of municipal inaction. However, Caporali is distinguishable from the present case because in Caporali, as in the cases cited above, the municipality actively acquiesced in the illegal use. * * * In the present case, testimony elicited from Mr. Mucy and a township official established that the officials patronized Appellants’ -4- 07-2012 CIVIL TERM business; however, the testimony in no way indicates that the officials did so in their official capacity. The mere patronage of Appellants’ business by township officials does not constitute permission, nor constitute active acquiescence, by the municipality in the use of the garage in a non- conforming manner. The municipality’s inaction for a period of several months in this case does not constitute a “long period.” In addition, one of the township officials who patronized Appellants’ business testified that at the time of patronage, he did not know whether Appellants were operating without Board Approval. The other officials who patronized Appellants’ business did not testify, and it was not established whether or not they knew at the time of patronage that Appellants’ business was operating without Board approval. Even if the officials did have knowledge, mere knowledge by a few individual officials of an impermissible use is insufficient to grant a variance by estoppel. Moreover, knowledge by a few individual officials cannot be imputed to the township. As to the second relevant factor, good faith reliance by the landowner, Appellants argue that they innocently and in good faith relied on the existence of other neighborhood businesses in establishing their commercial business. However, Appellants’ reliance was not reasonable because, as stated previously a landowner is duty bound to check the zoning status of real estate, and the failure to do so, which results in the lack of knowledge, cannot support the issuance of a variance on an estoppel theory. One who undertakes to make use of real estate for commercial purposes without inquiring as to whether the use is permitted by the municipality’s zoning ordinance, does so at his own peril. As to the third and fourth factors, substantial expenditures and unnecessary hardship, Appellants testified that they expended substantial funds to set up and operate their business, and that the property was not suitable for building a house. These arguments fail because it is not sufficient to show mere economic hardship or that the property could be utilized more profitably if a variance were granted. Appellants’ garage, as used for non-business purposes, is consistent with the permitted residential use. (Citations omitted.) (Footnote omitted.) I. Mucy, In the present case, unlike in North Middleton Township has not enforced its ordinance for the long period from 1999 until it sent a notice to George on December 19, 2006, that the use of her property for the wrecker and towing service business was not permitted. Furthermore, it issued a permit in 2005 for the construction of a large -5- 07-2012 CIVIL TERM garage with 14 foot doors which it knew was specifically designed for large trucks in the use of the business. The Township police department has frequently utilized the wrecker and towing service business; therefore, the Township was acquiesced in that use of the property. II. George acted in good faith and relied innocently upon the validity of use based Mucy on the Township’s acquiescence. Unlike in , her failure to check the property’s zoning status is excused due to that acquiescence and her reliance on the Township issuing a permit for the construction of the garage designed for use by the business. Appeal of Crawford from the Decision of the Upper South Hampden As set forth in Township Zoning Hearing Board , 110 Pa. Commw. 51 (1987); “But in assessing whether the landowner’s reliance upon municipal inaction is reasonable, a landowner absence some municipal validation of the use is, , ‘duty bound to check the zoning Hasage v. Zoning Board of Adjustment, status of the property before purchase.’ 415 Pa. 31, 35, 202 A.2d 61, 64 (1964).” (Emphasis added.) III. The garage for the wrecker and towing services business was erected by permit in 2005 after the property had been utilized for that purpose since 1999. The $30,000 cost was a substantial expenditure. IV. The large uniquely designed garage as permitted by the Township is not consistent Mucy, with the permitted residential use of the property. Therefore, unlike in on the unique facts of this case, where the garage was erected under a permit issued by the Township that knew that it was being built specifically for the wrecker and towing -6- 07-2012 CIVIL TERM Appeal of services business, there is unnecessary hardship. Contrast the facts in the Crawford, supra . The Zoning Hearing Board of North Middleton Township made an error of law as George is entitled to a variance by estoppel. Therefore, the following order is entered. ORDER OF COURT IT IS ORDERED AND NOW, this day of December, 2007, that the decision of the North Middleton Township Zoning Hearing Board denying a variance for 2 IS REVERSED. West Middlesex Drive, North Middleton Township, Cumberland County, By the Court, Edgar B. Bayley, J. Karl E. Rominger, Esquire For Plaintiff Michael R. Rundle, Esquire For Defendant :sal -7- CAROL A. GEORGE : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : V. : : ZONING HEARING BOARD OF : NORTH MIDDLETON TOWNSHIP : 07-2012 CIVIL TERM IN RE: APPEAL FROM DENIAL OF VARIANCE BEFORE BAYLEY, J. AND EBERT, J. ORDER OF COURT IT IS ORDERED AND NOW, this day of December, 2007, that the decision of the North Middleton Township Zoning Hearing Board denying a variance for 2 IS REVERSED. West Middlesex Drive, North Middleton Township, Cumberland County, By the Court, Edgar B. Bayley, J. Karl E. Rominger, Esquire For Plaintiff Michael R. Rundle, Esquire For Defendant :sal