Opinion
No. 949 C.D. 2012
12-20-2012
Randy Mitchell, Appellant v. Zoning Hearing Board for the Borough of Franklin Park and Borough of Franklin Park
BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Randy Mitchell appeals from the April 25, 2012 order of the Court of Common Pleas of Allegheny County (trial court) dismissing his appeal from the October 28, 2011 decision of the Zoning Hearing Board (ZHB) of the Borough of Franklin (Borough). The ZHB upheld the Borough's April 4, 2011 Zoning Notice of Violation (Notice of Violation), reflecting that Mitchell was keeping tow trucks on residentially zoned property in violation of section 212-75(B) of the Borough's zoning ordinance. (Reproduced Record (R.R.) at 186a-87a.)
Mitchell owns property at 2339 Havenhill Road, comprising 1.148 acres located in the Borough's R-1 (single-family residential) zoning district. In response to neighbors' complaints that Mitchell was parking tow trucks on the property, Borough Zoning Officer Timothy Phillips investigated the use of the property during the period from March 24 to April 1, 2011. Based on his observations, Phillips issued a Notice of Violation informing Mitchell that he was in violation of the Borough's Code, specifically, Chapter 212, Article 5, Section 212-75(B).
The address reflected in the Notice of Violation and the trial court's opinion is Havenhill Road; the ZHB's opinion states that the property's address is 2339 Haven Hill Lane. (ZHB's Finding of Fact No. 2.)
The notice indicated that it was for a first violation, directed Mitchell to commence compliance within 10 days and to cease or cure the violation within 30 days, and advised Mitchell of his right to appeal to the ZHB within 30 days. The notice further advised him that failure to comply with the notice within the specified time, unless extended by an appeal to the ZHB, would constitute a violation and subject him to a $500 fine plus costs and attorney fees.
Section 212-75(B), added to the Borough's Code in 1996, provides as follows:
Off-street parking facilities accessory to a residential use may be used only for the parking of passenger automobiles, recreational vehicles as defined by this chapter and commercial vehicles with a Class 4 or less registered gross or combination weight in pounds ... The use of residentially zoned property, either private or public, for the parking of commercial vehicles with a class 5 or greater registered gross or combination weight in pounds ... or tow trucks, construction equipment such as pavers, rollers, compressors, welders, backhoes, highlifts or trailers designed, constructed or intended to be used for the transport of such equipment, is prohibited.(R.R. at 4a) (emphasis added). Prior to the 1996 amendment, section 212-75 of the Code read in its entirety as follows: "Commercially licensed vehicles shall not be permitted to be parked on residential lots of less than one acre, except if service is being provided." (R.R. at 4a.)
Mitchell purchased the property in 2008, and, absent proof of a pre-existing non-conforming use of the property, it is subject to the restrictions of section 212-75(B) of the Code. The Code contains several provisions addressing non-conforming uses, including: section 212-127 (definitions); sections 212-128, 212-152 (registration); section 212-129 (continuation); and section 212-132 (abandonment). In pertinent part, section 212-132 provides that if a non-conforming use is abandoned for a continuous period of one year, the use must thereafter conform with the applicable zoning provisions of the district in which the property is located. Pursuant to this provision, abandonment commences upon cessation of the non-conforming use.
Mitchell filed an appeal to the ZHB asserting that the use of his property for parking commercial vehicles, including tow trucks, is a pre-existing non-conforming use that was carried on by his predecessor in title prior to the 1996 amendment and for more than fifteen years. He also asserted that the ordinance does not prohibit drivers of commercial vehicles from visiting residents at their residential property.
The ZHB held a hearing on May 12, 2011. Zoning Officer Phillips testified that over the course of seven days, he observed a small tow truck, up to three flatbed trucks, and up to five tow trucks parked on Mitchell's property. Mitchell owns a towing business which is located at 9700 Perry Highway, and, according to Phillips, the trucks he could see best were marked as "Mitchell's Towing." (R.R. at 65a-71a.) Phillips also testified that he found no Borough records indicating a non-conforming use of the property of this or any other type. (R.R. at 21a-22a.)
Jason Davies testified that he was the prior owner of the property. He stated that he purchased the property in 1987 or 1988, initially built a "50 by 35 nine or ten foot high garage," (R.R. at 86a-87a), and was cited for storing commercial vehicles on the property before he obtained an occupancy permit. The citation was dismissed when Davies agreed to build a house. (R.R. at 80a-81a.) Davies testified that, from the time he purchased the property, he continually parked, stored, or worked on tow trucks on the property. Davies said he had known Mitchell for 25 or 30 years and had told Mitchell that he never had a problem storing commercial vehicles on the property. Davies added that he operated a towing business called McCandless Towing at the property for four or five years. He stated that he provided snow removal in connection with the towing business, engaged in landscaping and excavating, sold mulch, and had a call center at the property. Davies testified that during all the years that he owned the property, there were tow trucks, construction equipment, compressors, welders, backhoes, and trailers designed, constructed or intended to be used for the transport of that equipment, and he stated that there was never a time when he did not have at least one of those items on his property. (R.R. at 82a-84a.) The Borough stipulated that Davies never received a notice of violation for commercial vehicles parked on the property from 1987 to the date in 2008 that he sold the property to Mitchell. (R.R. at 100a.)
Subsequently, however, on cross-examination, Davies admitted that he did not have tow trucks on his property during the years 2006-2007:
Q: ... Did you have tow trucks on the property when you weren't there in '06 or '07?
A: I don't know if I still -- no, I didn't have tow trucks in '06 or '07. Just dump trucks and pickup trucks.(R.R. at 176a-77a.)
Q: But what was stored at the property when you weren't living there?
A: I had a truck in the garage. I had a wheel loader back around the side. I had my backhoe there. I have moved stuff around here and there, I mean, not every day, but if I needed it, I would store it over there, or if I had to work on something in the garage. We have a new garage now. I still utilized the garage until I got my new garage up and running.
Mitchell testified that he operates "Mitchell's 24-Hour Towing" from 9700 Perry Highway and keeps his trucks at that location. Mitchell explained that he uses a smaller, one-ton tow truck as his personal vehicle because his children recently totaled his car. (R.R. at 107a-10a.) Mitchell did not believe that all five of his trucks would have been on his property at the same time because he has only two employees working at a time, and he speculated that the drivers of the trucks observed by the zoning officer were just visiting him. (R.R. at 114a-15a; 119a-21a.)
Mitchell said that one of the reasons he purchased the property was his awareness that Davies had stored tow trucks and equipment there. (R.R. at 116a.) Mitchell acknowledged that he had parked flatbeds at his property a few times, but he emphasized that it is not a regular practice. (R.R. at 118a.) He stated that his employees leave the trucks at the Perry Highway location overnight, other than on rare occasions, such as if one breaks down at his house. (R.R. at 123a, 126a.)
Various neighbors/objectors testified in opposition to Mitchell's appeal. In sum, they stated that they did not observe tow trucks on the property during the two-year period prior to Mitchell's purchase; further, since Mitchell has owned the property, they have often observed tow trucks parked on the property, as well as tow trucks coming and going from the property at all hours of the day and night.
With respect to the witnesses' testimony, the Board made the following relevant findings:
33. Jason Davies once owned a vehicle towing business ... and operated such business for an indeterminate period of approximately four (4) or five (5) years during the twenty-one (21) year period (1987-2008) in which he owned the Property. (Tr. p.76.)
34. Jason Davies owned tow trucks in connection with his ownership of "McCandless Towing" and tow trucks were among the equipment that, from time to time, he stored or worked upon at the Property. (Tr. p.77.)
35. Jason Davies also from time to time kept a backhoe, an excavator, and a salt truck on the Property. (Tr. p.77.)
...
47. Donna Guntrum (Objector) testified that Jason Davies did not reside at the Property at the time she bought her nearby residence in 2006, and that no commercial vehicles were parked on the Property until Mitchell thereafter purchased the Property in 2008. (Tr. p.137.)
48. [Guntrum] testified that she has observed tow trucks at the Property and that they have been parked overnight on the Property. (Tr. p.138.)
49. Jim Neugebauer (Objector) testified that there were no commercial vehicles which were utilized or parked at the Property for a two (2) year period prior to its purchase by Mitchell in 2008. (Tr. p.147.)
50. [Neugebauer] testified that, although Jason Davies did previously have various [types of] commercial equipment at the Property on an intermittent basis, he did not observe tow
trucks on the Property when it was owned by Jason Davies. (Tr. p.149.)(Board's decision at 6-9.)
...
53. Gregory Thurston (Objector) testified that he had witnessed individuals being dropped off at the Property in the mornings to pick up tow trucks that had been parked there overnight. (Tr. p.159.)
54. [Thurston] testified that individuals arrived at the Property to pick up tow trucks at times when Mitchell was not at home, that the individuals went straight to the tow trucks (and not the residence on the Property), and that he observed no social visitation. (Tr. p. 160.)
55. [Thurston] testified that he observed five (5) tow trucks parked on the Property on March 31, 2011 and that four (4) such vehicles remained parked on the property overnight. (Tr. p.160-161.)
...
57. [Thurston] testified that he recalled seeing only a backhoe (with its trailer) and a single Peterbilt plow truck at the Property during the period in which it was owned by Jason Davies. (Tr. p. 165, 166.)
58. Jason Davies testified that he terminated his personal residency at the Property in 2006, and thereafter he only stored a snowplow truck, a wheel loader, and a backhoe (with its trailer) at the Property during the subsequent two (2) year period (2006-2008) when he continued to own it (and his ex-wife continued to reside there). (Tr. p.167-168.)
59. Jason Davies testified that he did not park tow trucks at the Property during his ownership of it in the years 2006 and 2007 (Tr. p. 170 [R.R. at 176a].)
The ZHB concluded that the testimony of Zoning Officer Phillips and the objectors was credible and established that Mitchell utilizes the property for the parking of tow trucks. The ZHB rejected Mitchell's testimony that any tow trucks that were seen on the property were related to social visits that did not extend overnight in favor of the credible contradictory testimony of the other witnesses. The ZHB also determined that the ordinance allowed, but did not require the registration of non-conforming uses, so that such provisions are not dispositive of the status of the property. The ZHB rejected Mitchell's contention that the parking of tow trucks was permitted as the continuation of a prior, non-conforming use, concluding that the evidence established that Davies engaged in multiple and varying activities and that his parking of tow trucks was sporadic and intermittent and was discontinued by him entirely in 2006. More specifically, the ZHB found that Davies intended to abandon and did abandon the use of the property for the parking of tow trucks, beginning with his departure from the property in 2006. Accordingly, the ZHB denied Mitchell's appeal and upheld the Township's Notice of Violation.
Mitchell appealed to the trial court. The trial court first noted that Mitchell had not registered the property as a non-conforming use. The trial court also agreed with the ZHB that Mitchell failed to present other evidence establishing the extent, nature, time of creation and duration of the alleged prior non-conforming use. Accordingly, the trial court dismissed Mitchell's appeal.
Although the trial court referenced the issue of whether the ordinance imposed a duty on either party to register a non-conforming use, this issue was not material to the ZHB's decision and is not relevant to our disposition on appeal.
On appeal to this Court, Mitchell argues that he established a right to continue the use of his property as a pre-existing non-conforming use. Mitchell contends that he presented uncontroverted, credible evidence that the property was used for the parking and storage of commercial vehicles from 1987 through the present. He further contends that the ZHB's findings that the use of the property by its prior owner for the parking and storage of commercial vehicles was intermittent, sporadic, and/or discontinued is not supported by the evidence.
It is well settled that where, as here, the trial court takes no additional evidence, questions of credibility and evidentiary weight are within the exclusive province of the ZHB as fact-finder. Shamah v. Hellam Township Zoning Hearing Board, 648 A.2d 1299 (Pa. Cmwlth. 1994). Our scope of review is limited to determining whether the ZHB abused its discretion or committed an error of law. Manor Healthcare Corp. v. Lower Moreland Township Zoning Hearing Board, 590 A.2d 65 (Pa. Cmwlth. 1991). --------
Essentially, Mitchell argues that the presence of different construction equipment at the property at different times entitles him to continue the specific use of parking tow trucks. However, the language of the ordinance reflects an intentional distinction between various types of commercial vehicles, including commercial vehicles that exceed a certain weight "or tow trucks...." Thus, the fact that Davies may have stored other commercial equipment on the property is not sufficient to establish the parking of tow trucks as a continued non-conforming use.
Mitchell also asserts that he presented sufficient evidence to establish the existence of a prior non-conforming use and that the Township bore the burden of proving the intent to abandon and the actual abandonment of a non-conforming use. Even accepting these assertions, a zoning ordinance may establish a presumption of intent to abandon a non-conforming use by way of a provision specifying that the lapse of a designated time period is sufficient to establish the abandonment of a non-conforming use. Zitelli v. Zoning Hearing Board of Munhall, 850 A.2d 769 (Pa. Cmwlth. 2004). Once the intent to abandon a non-conforming use is established pursuant to such a provision, the burden of persuasion shifts to the party disputing the claim of abandonment. Id. Here, as previously noted, section 212-132 provides that abandonment of a non-conforming use commences upon cessation of the non-conforming use and that if a non-conforming use is abandoned for a continuous period of one year, the use must thereafter conform within the applicable zoning regulations. The evidence accepted by the ZHB establishes that Davies stopped parking tow trucks on his property at least two years prior to Mitchell's purchase.
Mitchell contends that the newly enacted ordinance provisions do not apply to his property pursuant to section 212-68 of the ordinance. In relevant part, this provision states that "[s]tructures and uses in existence at the date of adoption of this Chapter shall not be subject to the requirements of this Chapter so long as the kind or extent of use is not changed...." As previously indicated, however, the evidence established that the kind and the extent of the use had, in fact, changed. For this reason, Mitchell's reliance on section 212-68 of the ordinance is misplaced.
Based on the foregoing, we conclude that the ZHB did not err or abuse its discretion in denying Mitchell's appeal from the Notice of Violation. Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 20th day of December, 2012, the order of the Court of Common Pleas of Allegheny County, dated April 25, 2012, is hereby affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge