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Home My WebLink About2006-910 Civil PAUL and LOIS HOFFMAN, BENJAMIN and LINDA BABSKI, LOWELL and DIXIE BAKER, and JIM WILSON, PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. DAVID J. and ELIZABETH A. GABEL, DEFENDANTS 06-0910 CIVIL TERM IN RE: ADJUDICATION IN EQUITY OPINION AND ORDER OF COURT Bayley, J., October 2, 2006:-- On February 15, 2006, plaintiffs, Paul Hoffman, Lois Hoffman, Benjamin Babski, Linda Babski, Lowell Baker, Dixie Baker and Jim Wilson, filed a complaint against defendants, David J. Gabel and Elizabeth A. Gabel. Plaintiffs and defendants all live in homes located on lots in the development of Bunker Hills, Hampden Township, Cumberland County. The development contains 53 single family homes. Plaintiffs seek an order directing defendants to remove from their property what they describe as an auxiliary building, a basketball backboard and hoop, trampoline and bow and arrow target. An adjudication was conducted on September 18, 2006. Defendants moved into their home at 6351 Bennington Road in the fall of 2003. They have children who are now seven and two. Defendants removed from their backyard a metal swing set, containing five swings and a sliding board, which was left by the prior owner. They constructed a large wooden playhouse on an elevated deck supported by four wooden columns sunk into concrete in the back lawn. The sides of the playhouse are plywood. There is an open entrance, three windows and a finished 06-0910 CIVIL TERM peaked roof. A large wooden beam extends from near the top of one side of the playhouse to a wooden brace, with two columns extending to the ground. Three swings hang from the beam. There is also a small moveable trampoline in the backyard. It is circular, sits on metal legs and is enclosed with metal mesh protectors that are a few feet high. A moveable target is in the rear of the yard in front of some woods. David Gabel shoots arrows from a bow at the target. In their front yard, defendants sank a metal pole into concrete. There is a metal backboard with a basketball hoop extending from the top of the pole. All of the properties in Bunker Hills are subject to a recorded Declaration of Covenants and Restrictions. That document provides that the covenants and restrictions "are hereby established for the purpose of enhancing and protecting the value, desirability, marketability and attractiveness of the individual lots shown on said plan. . . ." The document contains the following: 2. LAND USE AND BUILDING TYPE All lots as indicated in paragraph 1 hereof shall be used solely for single family residential purposes. Not more than one (1) single family dwelling house, which shall not exceed two and one-half (2 % stories in height, shall be constructed on each lot. No auxiliary buildings or detached garages shall be permitted. All dwelling houses shall have an attached private garage for not less than one (1) and no more than three (3) cars. . .. No building shall be erected or placed on any lot which shall have an exterior finish of . . . plywood above-grade. (Emphasis added. ) *** 5. NUISANCES No noxious or offensive activity shall be carried on or upon -2- 06-0910 CIVIL TERM any lot or shall anything be done thereon which may be or may become an annoyance or nuisance to the neighborhood. While not intended to be inclusive, the following activities are specifically deemed to be nuisances and are prohibited absolutely unless prior written approval is obtained form [sic] the Architectural Control Committee as provided hereinafter: the use of motorcycles, motorbikes, all-terrain vehicles, motor-driven cycles, motor-scotters [sic], motorized pedacycles, 3-wheelers, and any like or similar form of motorized propulsion, as well as any motor vehicle, whether or not same is required to be licensed by the Commonwealth of Pennsylvania; the use and maintenance of ramps or any devices to facilitate skateboarding and the like; on-lot recreational facilities of any nature or type unless specifically exempted herein.1 (Emphasis added.) *** 9. OUTDOOR STORAGE AREAS No auxiliary buildings shall be permitted. . .. (Emphasis added. ) *** 18. ARCHITECTURAL CONTROL COMMITTEE All new construction or any subsequent exterior renovation or addition to improvements on said lots shall be subject to the express prior written approval of the Architectural Control Committee, and no construction shall commence prior to obtaining such approval. . .. (Emphasis added.) Section 19 of the Declaration of Covenants provides that: Violation of any of the foregoing restrictions, covenants and conditions may be redressed by the owner of any lot on said subdivision plan by action in equity for injunctive relief or such other remedy allowed by law. In Buck Hill Falls Company v. Press, 791 A.2d 392 (Pa. Super. 2002), the 1 Paragraph 12 provides: "A private in ground or above ground swimming pool with or without an attached bath house shall be permitted provided that it receives the prior approval of the Architectural Control Committee." -3- 06-0910 CIVIL TERM Superior Court of Pennsylvania stated: Under Pennsylvania law, land use restrictions, while not favored, are enforceable. In addition, land use restrictions must be strictly construed and will not be expanded by implication. (Emphasis added.) (Citations omitted.) In Baumgardner v. Stuckey, 735 A.2d 1272 (Pa. Super. 1999), the Superior Court, citing Great Atlantic and Pacific Tea Company, Inc. v. Bailey, 421 Pa. 540 (1966), noted that the requirement for strict construction of land use restrictions means that "nothing will be deemed a violation of such a restriction that is not in plain disregard of its express words." Defendants did not seek the approval of the Architectural Control Committee before putting any of the challenged items on their property. They did not have to because none of the challenged items constituted new construction or additions or improvements. Plaintiffs maintain that the playhouselswing set is an auxiliary building prohibited by Paragraphs 2 and 9 in the covenants and restrictions. The auxiliary building referred to in Paragraph 9 is an outdoor storage area, which the playhouselswing set is not. An auxiliary building referred to in Paragraph 2 is not defined in the Covenants and Restrictions. Merriam Webster's Collegiate Dictionary, Tenth Edition (1993), defines a "building," as a "roofed and walled structure built for permanent use (as for a dwelling)." The playhouselswing set is not an auxiliary building. Plaintiffs further maintain that the playhouselswing set is a recreational facility -4- 06-0910 CIVIL TERM which constitutes a nuisance under Paragraph 5 of the Covenants and Restrictions. A recreational facility is not defined in the document. Webster's defines "recreation" as "restoration to health, to create anew, restore, refresh, to create: refreshment of strength and spirits after work; a means of refreshment or diversion; hobby." "Facility" is defined to include, "something (as a hospital) that is built, installed, or established to serve a particular purpose." A playhouselswing set is used by children to play. It is not a recreational facility or otherwise a nuisance. Plaintiffs maintain that the basketball hoop, the trampoline and the moveable target are recreational facilities and thus prohibited nuisances under Paragraph 5.2 The moveable bow and arrow target is hardly a recreational facility. Nor are the basketball hoop and the trampoline recreational facilities. They are sports apparatus. Webster's defines "apparatus" to include, "a set of materials or equipment for a particular use." Such apparatus is not in plain disregard of whatever the meaning is of a recreational facility. We cannot expand that definition of a nuisance by implication. For the foregoing reasons, the following order is entered. ORDER OF COURT AND NOW, this complaint, IS DENIED. day of October, 2006, the relief sought in plaintiffs' By the Court, 2 There are more than a half a dozen other basketball hoops in the neighborhood. -5- 06-0910 CIVIL TERM Edgar B. Bayley, J. -6- 06-0910 CIVIL TERM Debra K. Wallet, Esquire For Plaintiffs Michael L. Bangs, Esquire F or Defendants :sal -7- PAUL and LOIS HOFFMAN, BENJAMIN and LINDA BABSKI, LOWELL and DIXIE BAKER, and JIM WILSON, PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. DAVID J. and ELIZABETH A. GABEL, DEFENDANTS 06-0910 CIVIL TERM IN RE: ADJUDICATION IN EQUITY ORDER OF COURT AND NOW, this day of October, 2006, the relief sought in plaintiffs' complaint, IS DENIED. By the Court, Edgar B. Bayley, J. Debra K. Wallet, Esquire For Plaintiffs Michael L. Bangs, Esquire F or Defendants :sal