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HomeMy WebLinkAbout97-6413 civilJOEY V. SULLENBERGER, APPELLANT ZONING HEARING BOARD OF SILVER SPRING TOWNSHIP, APPELLEE SILVER SPRING TOWNSHIP, INTERVENOR IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW 97-6413 CIVIL TERM IN RE: LAND USE APPEAL BEFORE BAYLEY, J. OPINION AND ORDER OF COURT BAYLEY, J., September 1, 1999:- Appellant, Joey V. Sullenberger, is the equitable owner of a multiunit apartment building in an area zoned (R) Rural Residential in Silver Spring Township, Cumberland County. On August 15, '1997, the Township's zoning officer issued a Notice of Violation that the use of the building for multiple apartments is in violation of the Township's zoning ordinance prohibiting such a use in a (R) Rural Residential district. Sullenberger appealed to the Zoning Hearing Board of Silver Spring Township. The Board conducted a hearing on September 8, '1997, and in an order supported by a written opinion dated October '14, '1997, denied the appeal and upheld the zoning officer's determination. 97-6413 CIVIL TERM Sullenberger filed this appeal nunc pro tunc.~ Silver Spring Township intervened. Appellant maintains that the Zoning Hearing Board erred by not finding that he was entitled to a variance by estoppel. In the alternative, appellant seeks an order authorizing the taking of additional evidence in this court or before the Zoning Hearing Board. Briefs were filed on both the merits of the appeal and the issue of the taking of additional evidence and argument was conducted on August 11, 1999. The Zoning Hearing Board found that the subject building was constructed in 1982 by appellant's father, George Sullenberger, pursuant to a Building Application & Permit (No. 2903) dated October 29, 1981. The application for the building permit set forth that the building was to consist of a 40' x 80' garage-storage-office. ^ plan attached to the application depicted a 40 x 20 office and a 40 x 60 storage/garage area. There was a place on the application to check if the use of the structure was to be in the "Residential" or "Apartment" or "Other" category. The category that was checked was "Other." The building permit was issued. At the time the property was in a (F) Forest district. Multiunit apartment buildings were not permitted in that district. The apartment building is now in a (R) Rural Residential district; however, multiunit apartment buildings are not permitted in that district. Appellant's father died in December, 1996. ~ An order granting the petition to file the appeal nunc pro tunc, supported by a written opinion, was entered on January 20, 1998. -2- 97-6413 CIVIL TERM In Mucy v. Fallowfield Township, 147 Pa. Commw. 644 (1992), the Commonwealth Court of Pennsylvania stated: There are several relevant factors in determining whether to grant a variance by estoppel. Those factors can be summarized 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 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 hardship on the applicant, such as the cost to demolish an existing building. (Emphasis added.) In the case sub judice, the Zoning Hearing Board concluded that: Applicant presented no credible testimony that... [it] has a 'vested right' to the current usage of the Property. If anything, the testimony, and the Permit Application, suggests that the Applicant's predecessor(s) in title misled the Township with respect to the intended use of the building. On the limited record developed by Joey Sullenberger, pro se before the Zoning Hearing Board, and based on the apparent misrepresentations by his father when he applied for the building permit in 1981, and notwithstanding how long the municipality may have known of the violation and failed to enforce its zoning taw, or whether the landowner made substantial expenditures in reliance on any belief that the use of the building for apartments was permitted, or whether the denial of a variance creates an -3- 97-6413 CIVIL TERM unnecessary hardship on the applicant, the Board did not make an error in law in concluding that the good faith prong of the requirement to obtain a variance by estoppel as set forth in the Mucy v. Fallowfield Township, supra, was not shown to have been met. In Eastern Consolidated and Distribution Services, Inc. v. Board of Commissioners of Hampden Township, 701 A.2d 621 (Pa. Commw. 1997), the Commonwealth Court of Pennsylvania stated: Section 1005-A of the MPC, 53 P.S. § 11005-A, provides, in part, as follows: If, upon motion, it is shown that proper consideration of the land use appeal requires the presentation of additional evidence, a judge of the court may hold a hearing to receive additional evidence, may remand the case to the body, agency or officer whose decision or order has been brought up for review, or may refer the case to a referee to receive additional evidence. The question of whether the presentation of additional evidence is to be permitted under this provision [§1005-A of MPC] is a matter within the discretion of the trial court. Kossman v. Zoning Hearing Board of Borough of Green Tree, 143 Pa. Cmwlth. 107, 597 A.2d 1274 (1991). In applying Section 1005-A, this Court has held: A court of common pleas faces compulsion to hear additional evidence in a zoning case only where the party seeking the hearing demonstrates that the record is incomplete because the party was denied an opportunity to be heard fully, or because relevant testimony was offered and excluded. (citing cases) (Emphasis added .) Joey Sullenberger was not represented at the hearing before the Zoning Hearing Board. He obviously neither understood the vested rights issue nor was he prepared to adequately address the issue. After very little evidence was taken a member of the Board, Duke, stated "What are our options?" The solicitor, Weingarten, said: -4- 97-6413 CIVIL TERM Actually, one option is whether or not Mr. Sullenberger wants us to continue when he brings back an attorney to make a vested rights argument. This is one option. The question here is whether or not he has clearly - this use was not permitted then. It is not permitted now. The only question is whether he has acquired some rights as a result of actions or inactions on the part of the Township. I haven't heard any argument that would suggest that the Township does have liability or that he has acquired rights as a result of the Township's action or inaction. Basically, Mr. Sullenberger, are you interested in pursuing this? Would you like us to continue this? Would you like to have an attorney take a look at this and see whether or not you would like to present additional testimony and evidence? (Emphasis added.) Sullenberger then said: I think if it has to go that far, yes. The fact being here, like I said before, I'm not - this building has been there for 15 years, the same building for 15 years .... (Emphasis added.) After some further discussion the following discussion occurred between the solicitor and Duke who was a member of the Board: MR. WEINGARTEN: The options are- there wasn't testimony presented tonight to do anything other than to deny the application. If he wants to bring testimony in that he has somehow acquired a right and he is willing to bring it up to code, I don't know. MR. DUKE: Even if he brings it up to code, it is still nonconforming. MR. WEINGARTEN: That's only if he would present testimony that he has acquired some sort of a vested right. He hasn't really presented any testimony as to a vested right that he has acted to his detriment in good faith. There are five criteria you must have to acquire a permit. You have to do it in good faith. People who got this permit and gave the permit are no longer around. It's when you have relied to your detriment on that permit. It seems to me that the permit was for a different building. I don't know if there was good faith. I think it is a tough case to make. I'm just saying we give him an opportunity or we just decide he has no chance of making that case. It is a tough case for him to make. (Emphasis added.) -5- 97-6413 CIVIL TERM The Board decided not to give the applicant another opportunity to show a vested right to use the property as a multiunit apartment building. Duke made a motion to deny the appeal which passed unanimously. Although a court is under a compulsion to order additional evidence only if a party seeking a hearing demonstrates that the record is incomplete because that party was denied an' opportunity to be fully heard, or because relevant testimony was offered and excluded, the court still has discretion to order additional evidence where deemed appropriate. Eastern Consolidated and Distribution Services, Inc. v. Board of Commissioners of Hampden Township, supra. The Board's solicitor recognized that the pro se applicant did not have sufficient information to fully present a vested rights argument, and that he would need an attorney to do so. Therefore, he asked the applicant if he wanted the hearing continued and the applicant said "1 think if it has to go that far, yes." The evidence was that the building has been used for multiunit apartments for about seventeen years and that it has been taxed as such by the Township. The applicant did not have information on the kind of expenditures that had been made on the building. He testified that there would be very little the building could be used for if it can no longer be used as apartments. It does' not appear from the record that Joey Sullenberger had ever seen the 1981 building permit before he went to the hearing. Under these circumstances, notwithstanding that it may be difficult for the applicant to establish a vested right to use the property for multiunit apartments, in our discretion we will allow him to present additional evidence before the Zoning Hearing -6- 97-6413 CIVIL TERM Board in an effort to do so. Bradley A. Schutjer, Esquire For Appellant ORDER OF COURT AND NOW, this J~ day of September, 1999, the within case is returned to the Silver Spring Township Zoning Hearing Board to conduct an additional hearing after which it shall make new findings of fact and conclusions of law and determine if there is a vested right to use the subject property as a multiunit apartment building. Edgar B. ayley, .~ Richard C. Snelbaker, Esquire For Silver Spring Township :saa -7-