Opinion
No. 2052 C.D. 2013
09-23-2014
Michael F. Gleason, Appellant v. Peach Bottom Township Zoning Hearing Board
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Michael F. Gleason (Gleason) appeals the order of the Court of Common Pleas of York County (common pleas court) that denied Gleason's appeal from the decision of the Peach Bottom Township Zoning Hearing Board (Board) that denied Gleason's appeal from a zoning violation notice which indicated property Gleason owned violated Section 354 of the Peach Bottom Township Zoning Ordinance (Ordinance) which prohibits the outdoor storage of junk.
Gleason owns real property located at 32 Knob Hill Lane (Property) in Peach Bottom Township (Township), which contains a cabin (Cabin) and a septic system. No one has occupied the Property since 1988. The Property is zoned residential.
By letter dated January 10, 2013, Gilbert G. Malone, Township Solicitor, sent a zoning enforcement notice to Gleason regarding the Property which stated that the Cabin on the Property constituted both "junk" and a "nuisance" pursuant to the Ordinance. The enforcement notice directed Gleason to "cause this dilapidated cabin to be removed from your property and your property cleaned up. This must be accomplished and your property brought into compliance with the Township Zoning Ordinance on or before 4:00 p.m. February 12, 2013." Zoning Enforcement Notice, January 10, 2013, Paragraph No. 7 at 2. The enforcement notice informed Gleason that failure to comply with the notice by 4:00 p.m. on February 12, 2013, without an appeal, would result in a violation of the Ordinance and a judgment against him in the amount of $500.00 plus court costs and reasonable attorney fees. Gleason appealed to the Board.
The Board heard Gleason's appeal on March 28, 2013. Gleason called Michelle Poole (Poole), Township zoning, building, permit, and sewage enforcement officer. Poole testified that Gleason previously testified in court that the Cabin was junk, and the Township agreed that it was. Poole also testified that there was a dilapidated wagon on the Property. Notes of Testimony, March 28, 2013, (N.T.) at 9; R.R. at 9a. Poole considered the Cabin "discarded" because "if the property is left abandoned to be allowed to grow up around it, it would be discarded." N.T. at 10; R.R. at 10a. Poole also characterized the Cabin as objectionable in appearance and a nuisance because "it attracts kids who like to come party and tear things up." N.T. at 10; R.R. at 10a. When questioned, Poole admitted that Gleason did not call the Cabin "junk" in the October 24, 2012, hearing. N.T. at 12; R.R. at 12a. Poole further admitted that she stated at the October 24, 2012, hearing that the Cabin "could be used tomorrow if they choose to go in and turn the electric on, running water, set it up to be lived in. It's a cabin." N.T. at 13; R.R. at 13a. Poole reported that when she went to the Property to take pictures, a neighbor from across the street said, "I hope you are planning to do something about that." N.T. at 16; R.R. at 16a. Poole surmised that the neighbor meant that the Property was overgrown and the Cabin was abandoned and allowed to deteriorate. N.T. at 16; R.R. at 16a. Poole explained that the Cabin could prove dangerous to neighborhood children who would come on to the Property because the roof was starting to cave in. N.T. at 19; R.R. at 19a. Poole also reported that bottles and cans were strewn around the Property. N.T. at 21; R.R. at 21a. On cross-examination, Poole stated that Gleason told her that the Cabin had not been occupied since 1988. N.T. at 31; R.R. at 31a.
Beginning on July 2, 2008, the Township attempted to arrange with Gleason to have the septic system on the Property pumped and inspected. The Township was unable to make such arrangements. By letter dated April 3, 2012, the Township sent written notice to Gleason, informing him of the requirement that all dwellings in the Township have their sewage systems pumped and inspected once every five years pursuant to the Peach Bottom Township Sewage Management and Pumping Ordinance (Sewage Ordinance). Gleason never responded to the notice. The Township brought an action before District Justice Olwert, who held in favor of the Township and imposed a fine on Gleason. Gleason appealed to the Court of Common Pleas of York County (trial court). Gleason argued that the Sewage Ordinance did not apply to him because the cabin on the Property was not a dwelling.
After a hearing on October 24, 2012, the trial court agreed with Gleason: We believe this dwelling is incapable of human habitation. The windows are broken up, it's overgrown, the floor is coming up, the ceiling is coming down. The property is completely unsafe for anybody even to enter. It's an abandoned wreck. Therefore, it's not a dwelling unit, and therefore the Defendant [Gleason] is not guilty.Notes of Testimony, October 24, 2012, at 30-31; Reproduced Record (R.R.) at 94a-95a.
Gleason's counsel, Matthew D. Menges, informed the Board that Gleason intended either to remove the Cabin from the Property or to donate the Property to an organization like the Boy Scouts and that Gleason needed an additional ninety days. N.T. at 41-42; R.R. at 41a-42a.
Gleason entered the Cabin for the first time in twenty-four years prior to the hearing and found that the walls, doors, and windows were in "very good shape." N.T. at 45; R.R. at 45a. Gleason also stated that he had tried to give the Property to someone in his family, but no one wanted it. N.T. at 46; R.R. at 46a. There was a small bedroom that was damaged when a branch came down on the roof. N.T. at 47; R.R. at 47a.
The transcript of the October 24, 2012, hearing before the trial court was submitted into evidence.
On April 12, 2013, the Board denied the appeal and granted Gleason ninety days to either rehabilitate or raze the Cabin.
On May 13, 2013, Gleason appealed the Board's decision to the common pleas court, which denied the appeal on October 21, 2013:
The Township Zoning Ordinance defines structures which are discarded and abandoned as junk and prohibits their presence on properties except in an approved junkyard in the Industrial District. It is clearly established that Appellant's [Gleason] property is in the Residential II zoning district and is not an approved junkyard. Furthermore, testimony from Michelle Poole, the Township Zoning Officer, revealed that after reviewing the condition of the cabin, she determined that
it was discarded. . . . There is clear and substantial evidence to support her conclusion that it was abandoned and discarded. Except for a visit immediately prior to the proceeding before the Court of Common Pleas on October 24, 2012, Appellant [Gleason] had not been to the property since 1988. . . . No one has stayed at the property since that time. . . . The well on the property has not operated since 1987. . . . Electrical service was removed around 2000. . . . Appellant [Gleason] presented photographs at the proceeding on October 24, 2012 establishing that a tree had caved in the roof at the rear of the cabin in two places. . . . Because of the collapsed roof there is water damage in the cabin. . . . There is substantial evidence supporting a conclusion that the property [Cabin] is in fact discarded and abandoned, which meets the Township Zoning Ordinance's definition of 'Junk.'
Furthermore, the Township Zoning Officer, after evaluating the condition of the property, found that the property constituted a nuisance in violation of Section 200.3 of the Township Zoning Ordinance because of its condition. The property is in a residential neighborhood and Appellant's [Gleason] neighbors have complained about the condition of the property [Cabin], that it was overgrown, left abandoned and allowed to deteriorate. . . .
The evidence in both the October 24, 2012 proceeding before the York County Court of Common Pleas and the March 28, 2013 proceeding before the ZHB [Board] established that the structure was dilapidated, deteriorated, abandoned and constituted 'junk' within the meaning of the Township Zoning Ordinance. It is clear from the evidence that the structure in question represents junk, as defined by the Peach Bottom Township Zoning Ordinance, in that it is an abandoned structure.
. . . .
The Court finds that it was not unreasonable for the ZHB [Board] to determine that the cabin's appearance and condition constituted junk, as defined by the Peach
Bottom Township Zoning Ordinance, in that it is an abandoned and discarded structure. Furthermore, Appellant has done nothing to ameliorate the condition by the maintenance of the structure or by the prompt removal of trash or junk. Substantial evidence clearly established that the Appellant's Property [Cabin] constituted "junk" as defined in Section 354 of the Township Zoning Ordinance and the maintenance of his Property constituted a nuisance in violation of Section 200.3 of Township Zoning Ordinance. (Citations omitted).Common Pleas Court Opinion, October 17, 2013, at 5-8.
Gleason contends that the Board's decision was unsupported by substantial evidence, that the common pleas court erred when it determined that the Cabin constituted "junk" in violation of Section 354 of the Ordinance, that the common pleas court erred when it determined that a neighboring property owner testified before the Board that the property was dangerous, and that the common pleas court erred when it found that a neighboring property owner complained about the Property prior to the issuance of the violation notice.
Where the common pleas court does not hear additional evidence beyond that which was heard by the zoning hearing board, this Court's standard of review is whether the zoning hearing board committed an error of law or abused its discretion. Patullo v. Zoning Hearing Board of Township of Middleton, 701 A.2d 295 (Pa. Cmwlth. 1997).
Initially, Gleason contends that the Board's decision was unsupported by substantial evidence. Gleason argues that the Cabin on the Property constituted neither a nuisance nor junk under the Ordinance.
The Township asserts that Gleason's appeal should be dismissed because he failed to file a copy of his Concise Statement of Errors Complained of on Appeal with the common pleas court as the common pleas court directed. Although Gleason should have followed the common pleas court's directive, the common pleas court received the statement and issued its opinion. Because this Court is able to render meaningful appellate review, this Court declines to dismiss the appeal. --------
With respect to a nuisance, Section 200.3 of the Ordinance provides, "In no case is a use permitted which by reason of noise, dust, odor[,] appearance, or other objectionable factor creates a nuisance, hazard, or other substantial adverse effect upon the property value or reasonable enjoyment of the surrounding property."
Gleason argues that Poole testified that she did not receive a single complaint concerning the Property prior to the issuance of the enforcement notice. Gleason further argues that the Township failed to establish that the Property did not come under Section 200.3 of the Ordinance. Poole testified that the Property was a nuisance because it was overgrown and not maintained, there were discarded bottles and cans next to the Cabin, and a neighbor complained about the condition of the Property. Poole further speculated that the condition of the Property would have an adverse impact on neighboring property values and that the Property could prove dangerous to neighborhood children because the Cabin was in such disrepair, particularly the roof. Given Poole's long tenure as the Township's zoning officer, Poole was certainly qualified to testify as to the condition of the Property and its effect on the surrounding area. Her testimony supported the conclusion that the Property constituted a nuisance.
Gleason also contends that the Cabin did not meet the definition of "junk" as defined in the Ordinance.
Section 354 of the Ordinance provides, "The following items must be stored in a completely enclosed structure excepting that if in the industrial zone they may be stored in an approved 'junkyard.' . . . (5) Junk as defined in this Ordinance."
The term "junk" is defined in the Ordinance as "any discarded material or article including, but not limited to, scrap metal, scrapped, abandoned or junked motor vehicles, machinery, equipment, paper, glass, containers, and structures. It shall not include, however, refuse or garbage kept in a proper container for the purpose of prompt disposal."
Gleason argues that the Board and common pleas court erred when each determined that the Cabin was junk in part because the term "abandoned" modifies the term "motor vehicles" in the definition of "junk" in the Ordinance. While Gleason is correct that "abandoned" is used in the Ordinance to modify "motor vehicles", this Court's inquiry does not end there.
Poole testified that the Cabin was "discarded" and a "discarded structure" qualifies as "junk" under the Ordinance. Poole's testimony was supported by other evidence which the common pleas court listed: Gleason had not visited the Property since 1988, except for once before the October 24, 2012, hearing. No one had stayed on the Property since 1988. The well has not operated since 1987. Electrical service was removed around 2000. Further, Gleason's own photographs at the October 24, 2012, hearing showed that a tree had caved in the roof in two places. This Court agrees with the common pleas court's conclusion that substantial evidence supported the Board's determination that the Property was discarded and qualified as junk.
This Court agrees with the common pleas court that substantial evidence supported the Board's determination that the Cabin constituted "junk" as defined in the Ordinance. Because the Property is not located in an industrial zone, the discarded and abandoned Cabin violated Section 354 of the Ordinance.
Gleason next contends that the common pleas court erred when it stated that a neighboring property owner testified before the Board that the Cabin was dangerous because the roof was caved in. The common pleas court noted that Gleason was correct on this point in its opinion that was issued after Gleason filed his Concise Statement of Errors Complained of on Appeal. However, this minor error does not change this Court's disposition of the case.
Similarly, Gleason contends that the common pleas court erred when it stated that multiple neighbors complained to Poole about the condition of the Property. Once again, the common pleas court acknowledged it erred and that only one neighbor complained to Poole about the Property. While it is important to be factually correct, the common pleas court's error does not change the determination that the Property constituted a nuisance as that determination was supported by Poole's testimony.
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge Judge McCullough Concurs in Result Only. ORDER
AND NOW, this 23rd day of September, 2014, the order of the Court of Common Pleas of York County in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge